Common use of Exculpation; Indemnification Clause in Contracts

Exculpation; Indemnification. The Managers, Directors and Officers shall not be liable, responsible or accountable for damages or otherwise to the Company, or to the Member; and, to the fullest extent allowed by law, each Manager, Director and each Officer shall be indemnified and held harmless by the Company, including advancement of reasonable attorneys’ fees and other expenses, but only to the extent that the Company’s assets are sufficient therefor, from and against all claims, liabilities, and expenses arising out of any management of Company affairs; provided, that (a) such Manager’s, Director’s or Officer’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and was reasonably believed by him to be within the scope of authority conferred on such Manager, Director or Officer pursuant to this Agreement, and (b) such course of conduct did not constitute gross negligence or willful misconduct on the part of such Manager, Director or Officer, as the case may be, and otherwise was in accordance with the terms of this Agreement. The rights of indemnification provided in this Section N.3 are intended to provide indemnification of the Managers, Directors and the Officers to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s indemnification of its directors and officers and will be in addition to any rights to which the Managers, Directors or Officers may otherwise be entitled by contract or as a matter of law and shall extend to their respective heirs, personal representatives and assigns. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently of this Section N.3. Each Manager’s, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligation. Notwithstanding anything to the contrary herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect to acts or conducts by such person prior to such consummation.

Exculpation; Indemnification. The ManagersAdvisor, Directors its members and Officers their respective officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Advisor or its affiliates (the “Indemnified Parties”) shall not be liable, responsible liable to the Fund for any action taken or accountable for damages omitted to be taken by the Advisor in connection with the performance of any of its duties or obligations under this Agreement or otherwise as an investment adviser of the Fund (except to the Company, or extent specified in Section 36(b) of the Investment Company Act concerning loss resulting from a breach of fiduciary duty (as the same is finally determined by judicial proceedings) with respect to the Member; andreceipt of compensation for services). The Fund shall indemnify, to defend and protect the fullest extent allowed by law, Indemnified Parties (each Manager, Director and each Officer of whom shall be indemnified deemed a third party beneficiary hereof) and held hold them harmless by the Companyfrom and against all damages, liabilities, costs and expenses (including advancement of reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other expenses, but only to proceeding (including an action or suit by or in the extent that right of the Company’s assets are sufficient therefor, from and against all claims, liabilities, and expenses Fund or its security holders) arising out of or otherwise based upon the performance of any management of Company affairsthe Advisor’s duties or obligations under this Agreement or otherwise as an investment adviser of the Fund. An Indemnified Party may consult with counsel and accountants in respect of the Fund’s affairs and shall be fully protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel and accountants; provided, that (a) such Manager’scounsel or accountants were selected with reasonable care and such protection is permitted by applicable law, Director’s including the Investment Company Act. Notwithstanding the foregoing provisions of this Section 7 to the contrary, nothing contained herein shall protect or Officer’s course be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Fund or its security holders to which the Indemnified Parties would otherwise be subject by reason of conduct was pursued in good willful misfeasance, bad faith and believed by him to be or gross negligence in the best interests performance of any Indemnified Party’s duties or by reason of the Company reckless disregard of the Advisor’s duties and was reasonably believed by him to be within the scope of authority conferred on such Manager, Director or Officer pursuant to obligations under this Agreement, and Agreement (b) such course of conduct did not constitute gross negligence or willful misconduct on the part of such Manager, Director or Officer, as the case may be, and otherwise was same shall be determined in accordance with the terms of this AgreementInvestment Company Act and any interpretations or guidance by the SEC or its staff thereunder). The rights of indemnification provided In addition, notwithstanding anything in this Section N.3 are intended to provide indemnification of the Managers, Directors and the Officers 7 to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s contrary, nothing contained herein shall protect or be deemed to protect the Advisor or its controlling persons against, or entitle or be deemed to entitle the Advisor or its controlling persons to, indemnification of in respect of, any liability to the Fund or its directors and officers and will be in addition to any rights security holders to which the Managers, Directors Advisor or Officers may its controlling persons would otherwise be entitled subject by contract or as reason of (a) a matter of law and shall extend to their respective heirs, personal representatives and assigns. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently material breach of this Section N.3. Each Manager’sAgreement that has a material adverse effect on the Fund, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon (b) negligence or (c) misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order, in the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligation. Notwithstanding anything to the contrary herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation performance of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect to acts or conducts by such person prior to such consummationAdvisor’s and/or its controlling persons’ duties.

Exculpation; Indemnification. The Managers, Directors and Officers Agent shall not be liable, responsible or accountable for damages or otherwise to the Company, or to the Member; and, to the fullest extent allowed by law, each Manager, Director and each Officer shall be indemnified and held harmless by the Company, including advancement of reasonable attorneys’ fees and other expenses, but only liable (i) in connection herewith except to the extent that the Company’s assets are sufficient thereforits fraud, from and against all claimsbad faith, liabilities, and expenses arising out of any management of Company affairs; provided, that (a) such Manager’s, Director’s or Officer’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and was reasonably believed by him to be within the scope of authority conferred on such Manager, Director or Officer pursuant to this Agreement, and (b) such course of conduct did not constitute gross negligence or willful misconduct was the cause of any loss to any Party or (ii) for special, incidental, punitive, indirect, or consequential loss or damage of any kind (including but not limited to lost profits). Buyer and the Representative shall severally and not jointly indemnify Agent for any losses, liabilities, taxes (except taxes imposed on the part of such Manager, Director gross or Officer, as the case may be, and otherwise was in accordance with the terms of this Agreement. The rights of indemnification provided in this Section N.3 are intended to provide indemnification net income of the ManagersAgent) and reasonable and documented out-of -pocket expenses (including, Directors without limitation, the reasonable and the Officers documented out-of-pocket fees and expenses of outside counsel or experts) arising out of or in connection with this Agreement or any act, omission or error of Agent in connection herewith, except to the fullest extent permitted caused by Delaware General Corporation Law regarding a corporationAgent’s indemnification of its directors and officers and will be in addition to any rights to which the Managersfraud, Directors bad faith, gross negligence or Officers may otherwise be entitled by contract or as a matter of law and shall extend to their respective heirs, personal representatives and assigns. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently of this Section N.3. Each Manager’s, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligationwillful misconduct. Notwithstanding anything to the contrary herein, Buyer and Representative agree, solely as between themselves, that any Managerobligation for indemnification under this Section 6 (or for reasonable and documented out-of-pocket fees and expenses of the Agent described in Section 6, Director other than the fees described in Section 1) shall be borne by the party or Officer who has only served parties determined by a court of competent jurisdiction to be responsible for causing the loss, damage, liability, cost or expense against which the Agent is entitled to indemnification or, if no such determination is made, then one half by B▇▇▇▇ and one half by Representative; provided, that, solely as between the Parties, any indemnification of Agent in respect of any loss, damage, liability, cost or expense arising out of any Spreadsheet, or any determination by the Representative in connection therewith, or any payment by Agent in accordance therewith, shall be borne solely by Representative and not by Buyer (this sentence, the “Indemnification Responsibility”). Agent shall have no obligation to make or facilitate any payment unless the applicable Party shall have provided the necessary readily available funds in accordance with the terms hereof to make such capacity prior payments and shall not be liable or responsible for any delay or failure of a Party or other Person to comply with any of their respective obligations. Notwithstanding anything in this Agreement to the consummation contrary, in no event shall Buyer or the Representative be liable for incidental, indirect, special, consequential or punitive damages of any kind whatsoever (including but not limited to lost profits) of Agent, even if such Party has been advised of the merger contemplated likelihood of such loss or damage and regardless of the form of action; provided, this sentence shall not prejudice Agent’s right to be indemnified for losses payable by Agent to third parties. If any amount paid by Buyer or the Plan Representative on account of Merger (and indemnification obligations owed pursuant to this Section 6 is not serving in any excess of the allocations specified in the Indemnification Responsibility above, the Party that paid such capacity from and after the Effective Date) excess amount shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees such amount. Notwithstanding the foregoing, neither Buyer nor Representative shall be required to indemnify Agent for any losses, liabilities, taxes or other expenses arising out of the settlement or compromise of a third party claim unless Agent shall have provided written notice to the Party that would otherwise be required to provide indemnification hereunder. This Section 6 shall survive the resignation or removal of Agent and expenses provided in the termination of this Section N with respect to acts or conducts by such person prior to such consummationAgreement.

Exculpation; Indemnification. The Managers(a) No party or any of its affiliates, Directors and Officers partners, directors, officers, employees, equity holders, representatives or agents shall not be liable, responsible or accountable for damages or otherwise liable to the Company, any other party hereto or to its affiliates, partners, directors, officers, employees, equity holders, representatives or agents for monetary damages for any losses, claims, demands, suits, liabilities or damages (collectively, “Damages”) arising from any act performed or omitted by such party or its affiliates, partners, directors, officers, employees, equity holders, representatives or agents arising out of or in connection with the Member; andperformance of this Agreement, to the fullest extent allowed by law, each Manager, Director and each Officer shall be indemnified and held harmless by the Company, including advancement of reasonable attorneys’ fees and other expenses, but only except to the extent that the Company’s assets any such Damages are sufficient therefor, from and against all claims, liabilities, and expenses arising out of any management of Company affairs; provided, that (a) such Manager’s, Director’s or Officer’s course of conduct was pursued in good faith and believed by him determined to be in the best interests of the Company and was reasonably believed by him attributable to be within the scope of authority conferred on such Managerperson’s gross negligence, Director willful misconduct or Officer pursuant to this Agreement, and fraud. (b) such course of conduct did not constitute gross negligence or willful misconduct on Notwithstanding anything in Section 9(a) hereof to the part of such Managercontrary, Director or Officerthe Bank shall, as the case may be, and otherwise was in accordance with the terms of this Agreement. The rights of indemnification provided in this Section N.3 are intended to provide indemnification of the Managers, Directors and the Officers to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s indemnification of its directors applicable law, indemnify, defend and officers and will be in addition to hold harmless Consultant against any rights Damages to which Consultant may become subject in connection with any matter arising out of or in connection with the Managersperformance of this Agreement or Consultant’s provision of Services hereunder, Directors except to the extent any such Damages are determined to be attributable to the gross negligence, willful misconduct or Officers may otherwise be entitled by contract fraud of Consultant. If Consultant becomes involved in any capacity in any action, proceeding or as a investigation in connection with any matter arising out of law or in connection with the performance of this Agreement, the Bank shall advance to Consultant his reasonable legal and shall extend to their respective heirs, personal representatives and assigns. The absence other expenses (including the costs of any express provision for indemnification herein investigation and preparation) as they are incurred in connection therewith; provided that Consultant shall promptly repay to the Bank the amount of any such advanced expenses paid to it or on its behalf if it shall be finally determined that Consultant was not limit any right of indemnification existing independently of this Section N.3. Each Manager’s, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated entitled to be ineligible for indemnificationindemnified by the Bank in connection with such action, which undertaking shall be an unlimited general obligation. proceeding or investigation. (c) Notwithstanding anything to the contrary contained herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect to acts or conducts by such person prior to such consummation9 shall survive the termination of this Agreement.

Exculpation; Indemnification. The ManagersService Provider and its members, Directors officers, employees, affiliates, and Officers agents, and the legal representatives of any of them (each, an “Indemnified Person”) shall not be liableliable for, responsible or accountable for damages or otherwise to the Company, or to the Member; and, to the fullest extent allowed by law, each Manager, Director and each Officer Fund (severally and not jointly) shall be indemnified indemnify and held hold harmless each Indemnified Person from and against, any loss or expense suffered or sustained by such Indemnified Person including, without limitation, any judgment, settlement, reasonable attorneys’ fees, and other costs and expenses incurred in connection with the Companydefense of any actual or threatened action or proceeding (collectively, including advancement “Losses”), provided that such Losses did not result from willful misconduct, fraud or gross negligence in the performance of such party’s obligations and duties or by reason of such party’s reckless disregard of its obligations and duties, if any, under this Agreement. The applicable Fund shall advance to any Indemnified Person reasonable attorneys’ fees and other expensescosts and expenses incurred in connection with the defense of any action or proceeding that arises out of such conduct. In the event that such an advance is made by a Fund, but only the Indemnified Person shall agree to reimburse the Fund, as applicable, for such fees, costs, and expenses to the extent that the Company’s assets are sufficient thereforit shall be determined that he, from and against all claimsshe, liabilities, and expenses arising out of or it was not entitled to indemnification. Nothing contained herein shall obligate any management of Company affairs; provided, that (a) such Manager’s, Director’s or Officer’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and was reasonably believed by him to be within the scope of authority conferred on such Manager, Director or Officer pursuant to this Agreement, and (b) such course of conduct did not constitute gross negligence or willful misconduct on the part of such Manager, Director or Officer, as the case may be, and otherwise was in accordance with the terms of this Agreement. The rights of indemnification provided in this Section N.3 are intended Fund to provide indemnification of the Managers, Directors and the Officers to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s that such indemnification would violate any applicable law or public policy, including the Employee Retirement Income Security Act of its directors and officers and will be in addition to any rights to which the Managers1974, Directors or Officers may otherwise be entitled by contract or as a matter of law and shall extend to their respective heirs, personal representatives and assigns. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently of this Section N.3. Each Manager’s, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligation. Notwithstanding anything to the contrary herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect to acts or conducts by such person prior to such consummationamended.

Exculpation; Indemnification. The Managers, Directors and Officers Each Seller hereby agrees that: (i) the Sellers’ Representative shall not be liableliable to any Seller for any actions taken or omitted to be taken under or in connection with this Agreement, responsible or accountable for damages or otherwise to any of the Companyother Transaction Documents, or the Transaction, except for such actions taken or omitted to be taken resulting from the MemberSellers’ Representative’s gross negligence or willful misconduct; and, (ii) the Sellers’ Representative shall not owe any fiduciary duty to any of the fullest extent allowed by law, each Manager, Director and each Officer shall be indemnified and held harmless Sellers as a result of the actions taken by the CompanySellers’ Representative pursuant to this Agreement or any of the other Transaction Documents, including advancement of reasonable attorneysexcept for such actions taken or omitted to be taken resulting from the Sellers’ fees Representative’s gross negligence or willful misconduct; and other expenses(iii) the Sellers, but only to jointly and severally, shall defend, indemnify and hold harmless the extent that the Company’s assets are sufficient therefor, Sellers’ Representative from and against any and all claimslosses, liabilities, and expenses damages, judgments, fines, penalties, deficiencies, Taxes, claims, demands (in each case, whether or not arising out of a third party claim), including any management loss of Company affairs; providedbenefit (including any Tax benefit) and the reasonable and documented fees, that (a) such Manager’scosts and expenses of attorneys, Director’s or Officer’s course of conduct was pursued accountants, consultants, investigators, experts and other professionals and any other reasonable and documented amounts paid in good faith and believed by him to be in the best interests respect of the Company and was reasonably believed by him investigation, defense, assertion, or settlement of any claim or the enforcement of any rights under this Agreement or any of the other Transaction Documents, whether criminal, civil, administrative, or investigative, based on, arising out of, or relating to be within the scope fact that such Person is the Sellers’ Representative hereunder or arising out of authority conferred on acts or omissions of such Manager, Director Person in such capacity (including in respect of acts or Officer pursuant to omissions in connection with this Agreement, any of the other Transaction Documents and (bthe Transaction) such course of conduct did not constitute except for, in any case, acts or omissions which involve gross negligence or willful misconduct on the part of such Manager, Director or Officer, as the case may be, and otherwise was in accordance with the terms of this Agreement. The rights of indemnification provided in this Section N.3 are intended to provide indemnification of the Managers, Directors and the Officers to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s indemnification of its directors and officers and will be in addition to any rights to which the Managers, Directors or Officers may otherwise be entitled by contract or as a matter of law and shall extend to their respective heirs, personal representatives and assigns. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently of this Section N.3. Each Manager’s, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligation. Notwithstanding anything to the contrary herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect to acts or conducts by such person prior conduct known to such consummationPerson at the time to constitute a material violation of Law.

Exculpation; Indemnification. The ManagersAdvisor, Directors its members and Officers their respective officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Advisor or its affiliates (the "Indemnified Parties") shall not be liable, responsible liable to the Fund for any action taken or accountable for damages omitted to be taken by the Advisor in connection with the performance of any of its duties or obligations under this Agreement or otherwise to as an investment adviser of the Company, or to the Member; and, to the fullest extent allowed by law, each Manager, Director and each Officer shall be indemnified and held harmless by the Company, including advancement of reasonable attorneys’ fees and other expenses, but only Fund (except to the extent that specified in Section 36(b) of the Company’s assets are sufficient thereforInvestment Company Act concerning loss resulting from a breach of fiduciary duty (as the same is finally determined by judicial proceedings) with respect to the receipt of compensation for services). The Fund shall indemnify, defend and protect the Indemnified Parties (each of whom shall be deemed a third party beneficiary hereof) and hold them harmless from and against all claimsdamages, liabilities, costs and expenses (including reasonable attorneys' fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Fund or its security holders) arising out of or otherwise based upon the performance of any management of Company affairsthe Advisor’s duties or obligations under this Agreement or otherwise as an investment adviser of the Fund. An Indemnified Party may consult with counsel and accountants in respect of the Fund’s affairs and shall be fully protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel and accountants; provided, that (a) such Manager’scounsel or accountants were selected with reasonable care and such protection is permitted by applicable law, Director’s including the Investment Company Act. Notwithstanding the foregoing provisions of this Section 7 to the contrary, nothing contained herein shall protect or Officer’s course be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Fund or its security holders to which the Indemnified Parties would otherwise be subject by reason of conduct was pursued in good willful misfeasance, bad faith and believed by him to be or gross negligence in the best interests performance of any Indemnified Party’s duties or by reason of the Company reckless disregard of the Advisor's duties and was reasonably believed by him to be within the scope of authority conferred on such Manager, Director or Officer pursuant to obligations under this Agreement, and Agreement (b) such course of conduct did not constitute gross negligence or willful misconduct on the part of such Manager, Director or Officer, as the case may be, and otherwise was same shall be determined in accordance with the terms of this AgreementInvestment Company Act and any interpretations or guidance by the SEC or its staff thereunder). The rights of indemnification provided In addition, notwithstanding anything in this Section N.3 are intended to provide indemnification of the Managers, Directors and the Officers 7 to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s contrary, nothing contained herein shall protect or be deemed to protect the Advisor or its controlling persons against, or entitle or be deemed to entitle the Advisor or its controlling persons to, indemnification of in respect of, any liability to the Fund or its directors and officers and will be in addition to any rights security holders to which the Managers, Directors Advisor or Officers may its controlling persons would otherwise be entitled subject by contract or as reason of (a) a matter of law and shall extend to their respective heirs, personal representatives and assigns. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently material breach of this Section N.3. Each Manager’sAgreement that has a material adverse effect on the Fund, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon (b) negligence or (c) misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order, in the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligation. Notwithstanding anything to the contrary herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation performance of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect to acts or conducts by such person prior to such consummationAdvisor's and/or its controlling persons' duties.

Exculpation; Indemnification. The Managers(a) Alkeon will use its best efforts in the supervision and management of the investment activities of the Fund and in providing services hereunder, Directors and Officers but Alkeon shall not be liableliable to the Fund or BACAP for any error of judgment or mistake of law or for any loss suffered by the Fund or BACAP in connection with the performance by Alkeon of its duties under this Agreement, responsible except a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services, or accountable for a loss resulting from willful misfeasance, bad faith or gross negligence on the part of Alkeon or any of its officers, directors, employees or agents (collectively, the "Affiliates") in the performance of their duties under this Agreement, or from reckless disregard by Alkeon or its Affiliates of their obligations or duties under this Agreement. (b) The Fund shall indemnify and hold harmless Alkeon and its Affiliates (each, an "Indemnified Person") against any and all losses, claims, damages or otherwise liabilities, joint or several, including, without limitation, reasonable attorneys' fees and disbursements, reasonably incurred by them in connection with, or resulting from, their actions or inactions in connection with the performance of their duties under this Agreement, except those losses, claims, damages or liabilities resulting from willful misfeasance, bad faith or gross negligence in the performance by the Indemnified Persons of their duties under this Agreement, or the reckless disregard of their obligations or duties under this Agreement. (c) Notwithstanding any of the foregoing to the Companycontrary, the provisions of this paragraph 9 shall not be construed so as to relieve the Indemnified Person of, or provide indemnification with respect to, any liability (including liability under Federal securities laws, which under certain circumstances, impose liability even on persons who act in good faith) to the Member; and, to the fullest extent allowed by law, each Manager, Director and each Officer shall be indemnified and held harmless by the Company, including advancement of reasonable attorneys’ fees and other expenses, (but only to the extent extent) that the Company’s assets are sufficient thereforsuch liability may not be waived, from and against all claims, liabilities, and expenses arising out of any management of Company affairs; provided, limited or modified under applicable law or that (a) such Manager’s, Director’s or Officer’s course of conduct was pursued in good faith and believed by him to indemnification would be in violation of applicable law, but shall be construed so as to effectuate the best interests of the Company and was reasonably believed by him to be within the scope of authority conferred on such Manager, Director or Officer pursuant to this Agreement, and (b) such course of conduct did not constitute gross negligence or willful misconduct on the part of such Manager, Director or Officer, as the case may be, and otherwise was in accordance with the terms provisions of this Agreement. The rights of indemnification provided in this Section N.3 are intended to provide indemnification of the Managers, Directors and the Officers paragraph 9 to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s indemnification of its directors and officers and will be in addition to any rights to which the Managers, Directors or Officers may otherwise be entitled by contract or as a matter of law and shall extend to their respective heirs, personal representatives and assigns. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently of this Section N.3. Each Manager’s, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligation. Notwithstanding anything to the contrary herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect to acts or conducts by such person prior to such consummationlaw.

Exculpation; Indemnification. The Managers(a) the Sub-Advisor, Directors its members and Officers their respective officers, managers, partners, agents, employees, controlling persons, members and any other person or entity affiliated with the Sub-Advisor or its affiliates (the “Indemnified Parties”) shall not be liable, responsible liable to the Fund for any action taken or accountable for damages omitted to be taken by the Sub-Advisor in connection with the performance of any of its duties or obligations under this Agreement or otherwise to as an investment adviser of the Company, or to the Member; and, to the fullest extent allowed by law, each Manager, Director and each Officer shall be indemnified and held harmless by the Company, including advancement of reasonable attorneys’ fees and other expenses, but only Fund (except to the extent that specified in Section 36(b) of the Company’s assets are sufficient thereforInvestment Company Act concerning loss resulting from a breach of fiduciary duty (as the same is finally determined by judicial proceedings) with respect to the receipt of compensation for services). The Fund shall indemnify, defend and protect the Indemnified Parties (each of whom shall be deemed a third party beneficiary hereof) and hold them harmless from and against all claimsdamages, liabilities, costs and expenses (including reasonable attorneys' fees and amounts reasonably paid in settlement) incurred by the Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Fund or its security holders) arising out of or otherwise based upon the performance of any management of Company affairsthe Sub-Advisor's duties or obligations under this Agreement or otherwise as an investment adviser of the Fund. An Indemnified Party may consult with counsel and accountants in respect of the Fund's affairs and shall be fully protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel and accountants; provided, that (a) such Manager’scounsel or accountants were selected with reasonable care and such protection is permitted by applicable law, Director’s including the Investment Company Act. Notwithstanding the foregoing provisions of this Section 9 to the contrary, nothing contained herein shall protect or Officer’s course be deemed to protect the Indemnified Parties against or entitle or be deemed to entitle the Indemnified Parties to indemnification in respect of, any liability to the Advisor, the Fund or its security holders to which the Indemnified Parties DOCPROPERTY DOCXDOCID DMS=InterwovenIManage Format=<<NUM>>v<<VER>> PRESERVELOCATION \* MERGEFORMAT 1011289450v5 would otherwise be subject by reason of conduct was pursued in good fraud, willful misfeasance, bad faith and believed by him to be or gross negligence in the best interests performance of any Indemnified Party’s duties or by reason of the Company reckless disregard of the Sub-Advisor's duties and was reasonably believed by him to be within the scope of authority conferred on such Manager, Director or Officer pursuant to obligations under this Agreement, and Agreement (b) such course of conduct did not constitute gross negligence or willful misconduct on the part of such Manager, Director or Officer, as the case may be, and otherwise was same shall be determined in accordance with the terms Investment Company Act and any interpretations or guidance by the SEC or its staff thereunder). (b) the Sub-Advisor agrees to indemnify, defend and protect the Advisor, the Fund and their respective officers, managers, partners, agents, employees, controlling person, members and any other person or entity affiliated with the Advisor and the Fund (collectively, the “Advisor Indemnified Parties”) and hold them harmless from and against all damages, liabilities, costs, demands, charges, claims and expenses (including reasonable attorneys' fees and amounts reasonably paid in settlement) incurred by the Advisor Indemnified Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of the Sub-Advisor) arising directly out of any actions or omissions of the Sub-Advisor or otherwise based upon the performance of any of the Sub-Advisor's duties or obligations under this Agreement. The rights of indemnification provided Notwithstanding anything in this Section N.3 are intended 9 to provide the contrary, the Sub-Advisor shall not be subject to any liability for any indemnification hereunder unless such obligation arises as a result of the ManagersSub-Advisor's fraud, Directors and willful misfeasance, bad faith or gross negligence in the Officers to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s indemnification performance of its directors duties under this Agreement. (c) the Advisor agrees to indemnify, defend and officers protect the Sub-Advisor and will be its respective officers, managers, partners, agents, employees, controlling person, members and any other person or entity affiliated with the Sub-Advisor (collectively, the “Sub-Advisor Indemnified Parties”) and hold them harmless from and against all damages, liabilities, costs, demands, charges, claims and expenses (including reasonable attorneys' fees and amounts reasonably paid in addition to any rights to which settlement) incurred by the Managers, Directors Sub-Advisor Indemnified Parties in or Officers may otherwise be entitled by contract or as a matter of law and shall extend to their respective heirs, personal representatives and assigns. The absence reason of any express provision for indemnification herein shall not limit any pending, threatened or completed action, suit, investigation or other proceeding (including an action or suit by or in the right of indemnification existing independently the Advisor) arising directly out of this Section N.3. Each Manager’s, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned any actions or omissions of the Advisor or otherwise based upon the delivery by such Manager, Director performance of any of the Advisor's duties or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to obligations under this Section N.3 or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligationAgreement. Notwithstanding anything to the contrary herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect 9 to acts the contrary, the Advisor shall not be subject to any liability for any indemnification hereunder unless such obligation arises as a result of the Advisor's fraud, willful misfeasance, bad faith or conducts by such person prior to such consummationgross negligence in the performance of its duties under this Agreement.

Exculpation; Indemnification. The Managers(a) No party or any of its affiliates, Directors and Officers partners, directors, officers, employees, equity holders, representatives or agents shall not be liable, responsible or accountable for damages or otherwise liable to the Company, any other party hereto or to its affiliates, partners, directors, officers, employees, equity holders, representatives or agents for monetary damages for any losses, claims, demands, suits, liabilities or damages (collectively, “Damages”) arising from any act performed or omitted by such party or its affiliates, partners, directors, officers, employees, equity holders, representatives or agents arising out of or in connection with the Member; andperformance of this Agreement, to the fullest extent allowed by law, each Manager, Director and each Officer shall be indemnified and held harmless by the Company, including advancement of reasonable attorneys’ fees and other expenses, but only except to the extent that the Company’s assets any such Damages are sufficient therefor, from and against all claims, liabilities, and expenses arising out of any management of Company affairs; provided, that (a) such Manager’s, Director’s or Officer’s course of conduct was pursued in good faith and believed by him determined to be in the best interests of the Company and was reasonably believed by him attributable to be within the scope of authority conferred on such Managerperson’s gross negligence, Director willful misconduct or Officer pursuant to this Agreement, and fraud. (b) such course of conduct did not constitute gross negligence or willful misconduct on Notwithstanding anything in Section 10(a) hereof to the part of such Managercontrary, Director or Officerthe Company shall, as the case may be, and otherwise was in accordance with the terms of this Agreement. The rights of indemnification provided in this Section N.3 are intended to provide indemnification of the Managers, Directors and the Officers to the fullest extent permitted by Delaware General Corporation Law regarding a corporation’s indemnification of its directors applicable law, indemnify, defend and officers and will be in addition to hold harmless Consultant against any rights Damages to which Consultant may become subject in connection with any matter arising out of or in connection with the Managersperformance of this Agreement or Consultant’s provision of Services hereunder, Directors except to the extent any such Damages are determined to be attributable to the gross negligence, willful misconduct or Officers may otherwise be entitled by contract fraud of Consultant. If Consultant becomes involved in any capacity in any action, proceeding or as a investigation in connection with any matter arising out of law or in connection with the performance of this Agreement, the Company shall advance to Consultant his reasonable legal and shall extend to their respective heirs, personal representatives and assigns. The absence other expenses (including the costs of any express provision for indemnification herein investigation and preparation) as they are incurred in connection therewith; provided that Consultant shall promptly repay to the Company the amount of any such advanced expenses paid to it or on its behalf if it shall be finally determined that Consultant was not limit any right of indemnification existing independently of this Section N.3. Each Manager’s, Director’s and each Officer’s right to indemnification pursuant to this Section N.3 may be conditioned upon the delivery by such Manager, Director or such Officer of a written undertaking to repay such amount if such individual is determined pursuant to this Section N.3 or adjudicated entitled to be ineligible for indemnificationindemnified by the Company in connection with such action, which undertaking shall be an unlimited general obligation. proceeding or investigation. (c) Notwithstanding anything to the contrary contained herein, any Manager, Director or Officer who has only served in such capacity prior to the consummation of the merger contemplated by the Plan of Merger (and is not serving in any such capacity from and after the Effective Date) shall only be entitled to the exculpation, indemnity and advancement or reimbursement of fees and expenses provided in this Section N with respect to acts or conducts by such person prior to such consummation10 shall survive the termination of this Agreement.