Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 1372 contracts
Samples: General Distribution Agreement (Fidelity Municipal Trust), General Distribution Agreement (Fidelity Union Street Trust Ii), General Distribution Agreement (Fidelity Investment Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 919 contracts
Samples: General Distribution Agreement (Fidelity Merrimack Street Trust), General Distribution Agreement (Fidelity Covington Trust), General Distribution Agreement (Fidelity Select Portfolios)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or the person shall have received notice of service on any designated agent). However, failure to notify the Fund of any claim shall not relieve the Fund from any liability which it may have to the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense, of any suit brought to enforce any claims, but if the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Distributor or person or persons, defendant or defendants in the suit. In the event the Fund elects to assume the defense of any suit and retain counsel, the Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Fund does not elect to assume the defense of any suit, it will reimburse the Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit for the reasonable fees and expenses of any counsel retained by them. The Fund agrees to notify the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or directors in connection with the issuance or sale of any of the Shares. The Distributor also covenants and agrees that it will indemnify and hold harmless the Fund and each of its trustees and officers and each person, if any, who controls the Fund within the meaning of Section 15 of the 1933 Act against any loss, liability, damage, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any Shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of the Distributor or any of its employees or alleging that the registration statement, Prospectus, shareholder reports or other information filed or made public by the Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by or on behalf of the Distributor. In no case (i) is the indemnity of the Distributor in favor of the Fund or any person indemnified to be deemed to protect the Fund or any such person against any liability to which the Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligation and duties under this Amended Agreement, or (ii) is the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Fund or any person indemnified unless the Fund or person, as the case may be, shall have notified the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Fund or person (or after the Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board trustees and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board trustees or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesShares.
Appears in 68 contracts
Samples: Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust), Distribution and Service Agreement (Van Kampen American Capital U S Government Trust), Distribution and Service Agreement (Van Kampen American Capital Corporate Bond Fund /)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 12 contracts
Samples: General Distribution Agreement (Fidelity School Street Trust/), General Distribution Agreement (Fidelity School Street Trust/), General Distribution Agreement (Fidelity Municipal Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 199 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 12 contracts
Samples: General Distribution Agreement (Fidelity Commonwealth Trust), Fidelity Newbury Street Trust, Fidelity School Street Trust/
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 199 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx Xxxxributors, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Xxxxxxxxxx of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 9 contracts
Samples: General Distribution Agreement (Fidelity Institutional Trust), General Distribution Agreement (Fidelity Institutional Trust), Fidelity Hastings Street Trust
Indemnification. The Issuer Subject to the limitations set forth in Paragraph 12 below, each Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Securities Act, against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damage or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer any Fund (as from time to time-to-time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, Securities Act or any other statute or the common law. However, the Issuer each Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer it by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer any Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer a Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer a Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer applicable Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer a Fund of any claim shall not relieve the Issuer that Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Each Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer a Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitsuch Fund. In the event the Issuer a Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer a Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Each Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will to indemnify and hold harmless the Issuer Trust and each Fund, the Managing Owner, and each of its Board members and officers their respective officers, representatives or agents and each person, if any, who controls the Issuer Trust and each Fund or the Managing Owner within the meaning of Section 15 of the 1933 ActSecurities Act (each, an “Indemnified Party”), against any loss, liability, damagesclaim, claim damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damagesclaim, claim damage or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Securities Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time-to-time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer such Fund or Managing Owner by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified Indemnified Party to be deemed to protect the Issuer or any person such party against any liability to which the Issuer or such person Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified Indemnified Party unless the Issuer or person, as the case may be, such Indemnified Party shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person Indemnified Party (or after the Issuer or such person Indemnified Party shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person Indemnified Party against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce any claims, and if the claim, but if Distributors Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerIndemnified Party, to its officers and Board and to any controlling person person(s), or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Indemnified Party or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerIndemnified Party, officers and Board or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Indemnified Party promptly of the commencement of any litigation or proceedings proceeding against it in connection with the issue Indemnified Party and sale of any of the sharesShares.
Appears in 9 contracts
Samples: Distribution Services Agreement (Invesco Db Us Dollar Index Bearish Fund), Distribution Services Agreement (Powershares Db Silver Fund), Distribution Services Agreement (Powershares Db Us Dollar Index Bearish Fund)
Indemnification. The Issuer Distributor agrees to indemnify and hold harmless Distributors the Fund and each of its directors and officers directors, officers, employees, representatives and each person, if any, who controls Distributors the Fund within the meaning of Section 15 of the 1933 Act SA-33 against any lossand all losses, liabilityliabilities, claimdamages, damages claims or expense expenses (including the reasonable cost costs of investigating or defending any alleged loss, liability, claimdamage, damages, claim or expense and reasonable legal counsel fees incurred in connection therewith) to which the Fund or such of its directors, officers, employees, representatives or controlling person may become subject under SA-33, under any other statute, at common law, or otherwise, arising by reason out of the acquisition of any Shares by any person acquiring any shares, which (i) may be based upon the ground that the any wrongful act by Distributor or any of Distributor`s directors, officers, employees or representatives, or (ii) may be based upon any untrue statement or alleged untrue statement of a material fact contained in a registration statement, Prospectus, Statement of Additional Informationprospectus, shareholder reports report or other information covering Shares filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact Fund or omitted any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the if such statement or omission was made in reliance upon, and in conformity with, upon information furnished to the Issuer Fund by or on behalf of DistributorsDistributor. In no case (i) is the Distributor`s indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer Fund, or any person indemnified to be deemed to protect the Issuer Fund or any such indemnified person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith faith, or gross negligence in the performance of its his duties or by reason of its his reckless disregard of its his obligations and duties under this Agreement, Agreement or (ii) is Distributors Distributor to be liable under its indemnity agreement contained in this paragraph Paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or such person, as the case may be, shall have notified Distributors Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any upon such person (or after the Issuer Fund or such person shall have received notice of such service on any designated agent). However, failure to notify Distributors Distributor of any such claim shall not relieve Distributors Distributor from any liability which it Distributor may have to the Issuer Fund or any person against whom the such action is brought otherwise than on account of its Distributor`s indemnity agreement contained in this paragraphParagraph. In the case of any notice to Distributors, it Distributor shall be entitled to participate, at its own expense, in the defense defense, or, if it Distributor so elects, to assume the defense of any suit brought to enforce the any such claim, but but, if Distributors Distributor elects to assume the defense, the such defense shall be conducted by legal counsel chosen by it Distributor and satisfactory to the IssuerFund, to its officers and Board and directors, officers, employees or representatives, or to any controlling person or persons, defendant or defendants defendants, in the suit. In the event that Distributors Distributor elects to assume the defense of any such suit and retain such legal counsel, the Issuer Fund, its directors, officers, employees, representatives or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional legal counsel retained by them. If Distributors Distributor does not elect to assume the defense of any such suit, it Distributor will reimburse the IssuerFund, officers such directors, officers, employees, representatives or controlling person or persons, defendant or defendants in such suit for the reasonable fees and Board expenses of any legal counsel retained by them. Distributor agrees to promptly notify the Fund of the commencement of any litigation or proceedings against it or any of its directors, officers, employees or representatives in connection with the issue or sale of any Shares. The Fund agrees to indemnify and hold harmless Distributor and each of its directors, officers, employees, representatives and each person, if any, who controls Distributor within the meaning of Section 15 of SA-33 against any and all losses, liabilities, damages, claims or expenses (including the reasonable costs of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable legal counsel fees incurred in connection therewith) to which Distributor or such of its directors, officers, employees, representatives or controlling person may become subject under SA-33, under any other statute, at common law, or otherwise, arising out of the acquisition of any Shares by any person which (i) may be based upon any wrongful act by the Fund or any of the Fund`s directors, officers, employees or representatives, or (ii) may be based upon any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, shareholder report or other information covering Shares filed or made public by the Fund or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such statement or omission was made in reliance upon information furnished to Distributor by the Fund. In no case (i) is the Fund`s indemnity in favor of the Distributor, or any person indemnified to be deemed to protect the Distributor or such indemnified person against any liability to which the Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of his duties or by reason of his reckless disregard of his obligations and duties under this Agreement, or (ii) is the Fund to be liable under its indemnity agreement contained in this Paragraph with respect to any claim made against Distributor, or person indemnified unless Distributor, or such person, as the case may be, shall have notified the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributor or upon such person (or after Distributor or such person shall have received notice of such service on any designated agent). However, failure to notify the Fund of any such claim shall not relieve the Fund from any liability which the Fund may have to Distributor or any person against whom such action is brought otherwise than on account of the Fund's indemnity agreement contained in this Paragraph. The Fund shall be entitled to participate, at its own expense, in the defense, or, if the Fund so elects, to assume the defense of any suit brought to enforce any such claim, but, if the Fund elects to assume the defense, such defense shall be conducted by legal counsel chosen by the Fund and satisfactory to Distributor, to its directors, officers, employees or representatives, or to any controlling person or persons, defendant or defendants, in the suit. In the event that the Fund elects to assume the defense of any such suit and retain such legal counsel, Distributor, its directors, officers, employees, representatives or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional legal counsel retained by them. If the Fund does not elect to assume the defense of any such suit, the Fund will reimburse Distributor, such directors, officers, employees, representatives or controlling person or persons, defendant or defendants in such suit for the reasonable fees and expenses of any legal counsel retained by them. Distributors The Fund agrees to promptly notify the Issuer promptly Distributor of the commencement of any litigation or proceedings against it or any of its directors, officers, employees, or representatives in connection with the issue and or sale of any of the sharesShares.
Appears in 9 contracts
Samples: Underwriting Agreement (Price T Rowe Capital Opportunity Fund Inc), Underwriting Agreement (Price T Rowe Real Estate Fund Inc), Underwriting Agreement (Price T Rowe New Income Fund Inc)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Principal Underwriter and each of its directors trustees and officers and each person, if any, who controls Distributors the Principal Underwriter within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damages, or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense expenses and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground grounds that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Principal Underwriter or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Principal Underwriter. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Principal Underwriter or any person indemnified to be deemed to protect Distributors the Principal Underwriter or any person against any liability to the Issuer Fund or its security holders to which Distributors the Principal Underwriter or such person would otherwise be by subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against Distributors the Principal Underwriter or any other person indemnified unless Distributors the Principal Underwriter or person, as the case may be, such other person shall have notified the Issuer Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Principal Underwriter or any such person (or after Distributors the Principal Underwriter or such the person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors the Principal Underwriter or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit such action brought to enforce any claims, but if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Principal Underwriter or officers or trustees or controlling person or persons, persons or defendant or defendants in the suit. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Principal Underwriter, officers or directors trustees or controlling person or persons, persons or defendant or defendants in the suit, suit shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Principal Underwriter, officers or directors trustees or controlling person or persons, persons or defendant or defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Principal Underwriter promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees directors in connection with the issuance or sale of any of the sharesShares. Distributors The Principal Underwriter also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members trustees and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Principal Underwriter or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer Fund by or on behalf of Distributorsthe Principal Underwriter. In no case (i) is the indemnity of Distributors the Principal Underwriter in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any such person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Principal Underwriter to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Principal Underwriter in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Principal Underwriter of any claim shall not relieve Distributors the Principal Underwriter from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Principal Underwriter, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Principal Underwriter elects to assume the defense, defense the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board trustees and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Principal Underwriter elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling persons, defendant persons or defendants in the suit, suit shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Principal Underwriter does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board trustees or controlling person or persons, persons or defendant or defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Principal Underwriter agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesShares.
Appears in 9 contracts
Samples: Offering Agreement (Van Kampen Senior Floating Rate Fund), Offering Agreement (Van Kampen Prime Rate Income Trust), Offering Agreement (Van Kampen American Capital Prime Rate Income Trust)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Fund of any claim shall not relieve Distributors the Fund from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it The Fund shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claimany claims, but if Distributors the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Fund elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Fund does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or trustees or controlling person or persons, defendant or defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Fund agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or directors in connection with the issue and issuance or sale of any of the shares.Shares. The Distributor also covenants and agrees that it will indemnify and hold harmless the Fund and each of its trustees and officers and each person, if any, who controls the Fund within the meaning of Section 15 of the 1933 Act against any loss, liability, damage, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any Shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of the Distributor or any of its employees or alleging that the registration statement, Prospectus, shareholder reports or other information filed or made public by the Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by or on behalf of the Distributor. In no case (i) is the indemnity of the Distributor in favor of the Fund or any person indemnified to be deemed to protect the Fund or any such person against any liability to which the Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligation and duties under this Amended Agreement, or (ii) is the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Fund or any person indemnified unless the Fund or person, as the case may be, shall have notified the Distributor in writing of the claim within a reasonable time after the summons or other first
Appears in 9 contracts
Samples: Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust), Distribution and Service Agreement (Van Kampen American Capital Equity Trust/), Distribution and Service Agreement (Van Kampen American Capital Pennsylvania Tax Free Income Fun)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground grounds that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act, or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case case: (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit litigation or proceeding and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suit, suit covered by the indemnification set forth in this Agreement for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers officers, directors or trustees controlling person(s) in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers officers, trustees and each person, if any, who controls control the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of of: (i) any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging alleging: (a) any wrongful act of Distributors the Distributor or any of its employees; or (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or alleging that the registration statement, Prospectusprospectus, Statement or statement of Additional Information, shareholder reports or other additional information filed or made public by the Issuer (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state an alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case case: (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants any other defendant(s) in the suitsuit covered by the indemnification set forth in this Agreement. In the event that Distributors the Distributor elects to assume the defense of any suit litigation or proceeding and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse the IssuerFund, officers and Board or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suitlitigation or proceeding covered by the indemnification set forth in this Agreement, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings proceeding against it it, its officers, its directors or its controlling person(s) in connection with the issue Fund and sale of any of the sharesShares.
Appears in 9 contracts
Samples: Form of Distribution Agreement (Nexpoint Discount Yield Fund), Form of Distribution Agreement (Nexpoint Real Estate Strategies Fund), Distribution Agreement (Nexpoint Healthcare Opportunities Fund)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1999 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Dxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxd if to Distributors, at 82 Dxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 8 contracts
Samples: General Distribution Agreement (Fidelity Advisor Series Viii), General Distribution Agreement (Fidelity Advisor Series Viii), General Distribution Agreement (Fidelity Advisor Series Viii)
Indemnification. The Issuer Subject to the limitations set forth in Paragraph 12 below, the Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Securities Act, against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damage or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time-to-time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, Securities Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer it by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer a Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer a Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer a Fund of any claim shall not relieve the Issuer that Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer a Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitsuch Fund. In the event the Issuer a Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer a Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will to indemnify and hold harmless the Issuer Fund, the Managing Owner, and each of its Board members and officers their respective officers, representatives or agents and each person, if any, who controls the Issuer Fund or the Managing Owner within the meaning of Section 15 of the 1933 ActSecurities Act (each, an “Indemnified Party”), against any loss, liability, damagesclaim, claim damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damagesclaim, claim damage or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Securities Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time-to-time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer such Fund or Managing Owner by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified Indemnified Party to be deemed to protect the Issuer or any person such party against any liability to which the Issuer or such person Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified Indemnified Party unless the Issuer or person, as the case may be, such Indemnified Party shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person Indemnified Party (or after the Issuer or such person Indemnified Party shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person Indemnified Party against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce any claims, and if the claim, but if Distributors Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerIndemnified Party, to its officers and Board and to any controlling person person(s), or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Indemnified Party or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerIndemnified Party, officers and Board or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Indemnified Party promptly of the commencement of any litigation or proceedings proceeding against it in connection with the issue Indemnified Party and sale of any of the sharesShares.
Appears in 7 contracts
Samples: Distribution Services Agreement (PowerShares DB Commodity Index Tracking Fund), Distribution Services Agreement (PowerShares DB Commodity Index Tracking Fund), Distribution Services Agreement (PowerShares DB G10 Currency Harvest Fund)
Indemnification. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Trust in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Trust or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Trust to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Trust in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitTrust. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Trust does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Trust agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it the Trust or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Trust and each of its Board members and officers and each person, if any, who controls the Issuer Trust within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Trust or any person indemnified to be deemed to protect the Issuer Trust or any person against any liability to which the Issuer Trust or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Trust or any person indemnified unless the Issuer Trust or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Trust or any such person (or after the Issuer Trust or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Trust or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerTrust, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Trust or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerTrust, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Trust promptly of the commencement of any litigation or proceedings against it the Distributor in connection with the issue Trust and sale of any of the sharesShares.
Appears in 7 contracts
Samples: Distribution Agreement (Financial Investors Variable Insurance Trust), Distribution Agreement (Financial Investors Variable Insurance Trust), Distribution Agreement (ALPS Variable Insurance Trust)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 6 contracts
Samples: Distribution Agreement (Wasatch Funds Trust), Distribution Agreement (Wasatch Funds Trust), Distribution Agreement (Wasatch Funds Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 5 contracts
Samples: General Distribution Agreement (Fidelity Commonwealth Trust), General Distribution Agreement (Fidelity Select Portfolios), General Distribution Agreement (Fidelity Advisor Series Ii)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 5 contracts
Samples: General Distribution Agreement (Fidelity Financial Trust), General Distribution Agreement (Fidelity Financial Trust), General Distribution Agreement (Fidelity Financial Trust)
Indemnification. The Issuer agrees Funds agree to indemnify and hold harmless Distributors the Distributor and each of its directors directors, trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer a Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer does Funds do not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer a Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to a Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors a Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors that Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or the person shall have received notice of service on any designated agent). However, failure to notify a Fund of any claim shall not relieve that Fund from any liability which it may have to the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. Each Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense, of any suit brought to enforce any claims, but if the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Distributor or person or persons, defendant or defendants in the suit. In the event a Fund elects to assume the defense of any suit and retain counsel, the Distributor, directors, trustees or officers or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If a Fund does not elect to assume the defense of any suit, it will reimburse the Distributor, directors, trustees or officers or controlling person or persons, defendant or defendants in the suit for the reasonable fees and expenses of any counsel retained by them. Each Fund agrees to notify the Distributor promptly of the commencement of any litigation or proceedings against it or any of its Trustees or officers in connection with the issuance or sale of any of the Shares. The Distributor also covenants and agrees that it will indemnify and hold harmless the Funds and each of its Trustees and officers and each person, if any, who controls each Fund within the meaning of Section 15 of the 1933 Act against any loss, liability, damage, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any Shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of the Distributor or any of its employees or alleging that the registration statement, Prospectus, shareholder reports or other information filed or made public by a Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by or on behalf of the Distributor. In no case (i) is the indemnity of the Distributor in favor of a Fund or any person indemnified to be deemed to protect the Fund or any such person against any liability to which the Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligation and duties under this Agreement, or (ii) is the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against a Fund or any person indemnified unless the Fund or person, as the case may be, shall have notified the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Fund or person (or after the Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its Trustees and officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, Trustees and officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesShares.
Appears in 5 contracts
Samples: Distribution and Service Agreement (Van Kampen Reserve Fund), Distribution and Service Agreement (Van Kampen Life Investment Trust), Distribution and Service Agreement (Van Kampen Trust II)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted consulted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 5 contracts
Samples: Distribution Agreement (Firsthand Funds), Distribution Agreement (Firsthand Funds), Distribution Agreement (Firsthand Funds)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1997, and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Trust Instrument or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Trust Instrument or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 5 contracts
Samples: General Distribution Agreement (Fidelity Aberdeen Street Trust), General Distribution Agreement (Fidelity Aberdeen Street Trust), General Distribution Agreement (Fidelity Aberdeen Street Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 5 contracts
Samples: General Distribution Agreement (Colchester Street Trust), General Distribution Agreement (Colchester Street Trust), General Distribution Agreement (Fidelity Union Street Trust Ii)
Indemnification. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Trust in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Trust or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Trust to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Trust in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphparagraph except to the extent that the Trust is harmed by such delay. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitTrust. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Trust does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Trust agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Trust and each of its Board members trustees and officers and each person, if any, who controls the Issuer Trust within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Trust or any person indemnified to be deemed to protect the Issuer Trust or any person against any liability to which the Issuer Trust or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Trust or any person indemnified unless the Issuer Trust or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Trust or any such person (or after the Issuer Trust or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Trust or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraphparagraph except to the extent that the Distributor is harmed by such delay. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerTrust, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Trust or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerTrust, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Trust promptly of the commencement of any litigation or proceedings against it in connection with the issue Trust and sale of any of the sharesShares.
Appears in 4 contracts
Samples: Distribution Agreement (Financial Investors Trust), Distribution Agreement (Financial Investors Trust), Distribution Agreement (Financial Investors Trust)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphparagraph except to the extent that the Fund is harmed by such delay. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members trustees and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraphparagraph except to the extent that the Distributor is harmed by such delay. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 3 contracts
Samples: Distribution Agreement (Stone Harbor Investment Funds), Distribution Agreement (Stone Harbor Investment Funds), Distribution Agreement (Stone Harbor Investment Funds)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Principal Underwriter and each of its directors trustees and officers and each person, if any, who controls Distributors the Principal Underwriter within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damages, or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense expenses and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground grounds that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Principal Underwriter or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Principal Underwriter. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Principal Underwriter or any person indemnified to be deemed to protect Distributors the Principal Underwriter or any person against any liability to the Issuer Fund or its security holders to which Distributors the Principal Underwriter or such person would otherwise be by subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against Distributors the Principal Underwriter or any other person indemnified unless Distributors the Principal Underwriter or person, as the case may be, such other person shall have notified the Issuer Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Principal Underwriter or any such person (or after Distributors the Principal Underwriter or such the person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors the Principal Underwriter or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit such action brought to enforce any claims, but if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Principal Underwriter or officers or trustees or controlling person or persons, persons or defendant or defendants in the suit. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Principal Underwriter, officers or directors trustees or controlling person or persons, persons or defendant or defendants in the suit, suit shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Principal Underwriter, officers or directors trustees or controlling person or persons, persons or defendant or defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Principal Underwriter promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees directors in connection with the issuance or sale of any of the sharesShares. Distributors The Principal Underwriter also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members trustees and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Principal Underwriter or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer Fund by or on behalf of Distributorsthe Principal Underwriter. In no case (i) is the indemnity of Distributors the Principal Underwriter in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any such person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Principal Underwriter to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Principal Underwriter in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Principal Underwriter of any claim shall not relieve Distributors the Principal Underwriter from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Principal Underwriter, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Principal Underwriter elects to assume the defense, defense the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board trustees and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Principal Underwriter elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling persons, defendant persons or defendants in the suit, suit shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Principal Underwriter does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board trustees or controlling 5 person or persons, persons or defendant or defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Principal Underwriter agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesShares.
Appears in 3 contracts
Samples: Offering Agreement (Van Kampen Senior Floating Rate Fund), Offering Agreement (Van Kampen Senior Floating Rate Fund), Offering Agreement (Van Kampen Senior Floating Rate Fund)
Indemnification. (a) The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor, its affiliates and each of its directors and their respective directors, officers and each person, if any, employees and agents and any person who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act (any of the Distributor, its officers, employees, agents and directors or such control persons, for purposes of this paragraph, a “Distributor Indemnitee”) against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason out of any person acquiring any shares, or based upon the ground (i) any claim that the registration statementRegistration Statement, Prospectus, Statement of Additional Information, shareholder reports reports, sales literature and advertisements specifically approved by the Trust and Investment Adviser in writing or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein (and in the case of the Prospectus and Statement of Additional Information, in light of the circumstances under which they were made) not misleading under the 1933 Act, or any other statute or the common law; (ii) the breach by the Trust of any obligation, representation or warranty contained in this Agreement; or (iii) the Trust’s failure to comply in any material respect with applicable securities laws. However, the Issuer The Trust does not agree to indemnify Distributors any Distributor Indemnitees or hold it them harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. The Trust will also not indemnify any Distributor Indemnitee with respect to any untrue statement or omission made in the Registration Statement, Prospectus or Statement of Additional Information that is subsequently corrected in such document (or an amendment thereof or supplement thereto) if a copy of the Prospectus (or such amendment or supplement) was not sent or given to the person asserting any such loss, liability, claim, damage or expense at or before the written confirmation to such person in any case where such delivery is required by the 1933 Act and the Trust had notified the Distributor of the amendment or supplement prior to the sending of the confirmation. In no case (i) is the indemnity of the Issuer Trust in favor of Distributors or any person indemnified Distributor Indemnitee to be deemed to protect Distributors or any person the Distributor Indemnitee against any liability to the Issuer Trust or its security holders shareholders to which Distributors or such person the Distributor Indemnitee would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties and obligations set forth in sections (3)(g), (m), (o) or (p) of this Agreement, and by reason of its willful misfeasance, bad faith, gross negligence or reckless disregard in the performance of the remainder of its duties and obligations and duties representations and warranties under this Agreement, or (ii) is the Issuer Trust to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against Distributors or any person indemnified Distributor Indemnitee unless Distributors or person, as the case may be, Distributor Indemnitee shall have notified the Issuer Trust in writing of the claim at its principal offices in Chicago, Illinois within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person Distributor Indemnitee (or after Distributors or such person Distributor Indemnitee shall have received notice of service on any designated agent). However, failure Failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which that it may have to Distributors or any person Distributor Indemnitee against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphunless failure or delay to so notify the Trust prejudices the Trust’s ability to defend against such claim. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or personsDistributor Indemnitee, defendant or defendants in the suit. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or personsDistributor Indemnitee, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Trust does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or personsthe Distributor Indemnitee, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer Trust agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees Trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless Creation Units or the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesShares.
Appears in 3 contracts
Samples: Form of Etf Distribution Agreement (FlexShares Trust), Flexsharessm Trust (FlexShares Trust), Flexshares® Trust (FlexShares Trust)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Fund of any claim shall not relieve Distributors the Fund from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it The Fund shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claimany claims, but if Distributors the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Fund elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Fund does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.will
Appears in 3 contracts
Samples: Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust), Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust), Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until January 31, 1996 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 3 contracts
Samples: Fidelity Boston Street Trust, Fidelity Boston Street Trust, Fidelity Boston Street Trust
Indemnification. The Issuer Distributor agrees to indemnify and hold harmless Distributors the Fund and each of its directors and officers directors, officers, employees, representatives and each person, if any, who controls Distributors the Fund within the meaning of Section 15 of the 1933 Act SA-33 against any lossand all losses, liabilityliabilities, claimdamages, damages claims or expense expenses (including the reasonable cost costs of investigating or defending any alleged loss, liability, claimdamage, damages, claim or expense and reasonable legal counsel fees incurred in connection therewith) to which the Fund or such of its directors, officers, employees, representatives or controlling person may become subject under SA-33, under any other statute, at common law, or otherwise, arising by reason out of the acquisition of any Shares by any person acquiring any shares, which (i) may be based upon the ground that the any wrongful act by Distributor or any of Distributor`s directors, officers, employees or representatives, or (ii) may be based upon any untrue statement or alleged untrue statement of a material fact contained in a registration statement, Prospectus, Statement of Additional Informationprospectus, shareholder reports report or other information covering Shares filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact Fund or omitted any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the if such statement or omission was made in reliance upon, and in conformity with, upon information furnished to the Issuer Fund by or on behalf of DistributorsDistributor. In no case (i) is the Distributor`s indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer Fund, or any person indemnified to be deemed to protect the Issuer Fund or any such indemnified person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith faith, or gross negligence in the performance of its his duties or by reason of its his reckless disregard of its his obligations and duties under this Agreement, Agreement or (ii) is Distributors Distributor to be liable under its indemnity agreement contained in this paragraph Paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or such person, as the case may be, shall have notified Distributors Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any upon such person (or after the Issuer Fund or such person shall have received notice of such service on any designated agent). However, failure to notify Distributors Distributor of any such claim shall not relieve Distributors Distributor from any liability which it Distributor may have to the Issuer Fund or any person against whom the such action is brought otherwise than on account of its Distributor`s indemnity agreement contained in this paragraphParagraph. In the case of any notice to Distributors, it Distributor shall be entitled to participate, at its own expense, in the defense defense, or, if it Distributor so elects, to assume the defense of any suit brought to enforce the any such claim, but but, if Distributors Distributor elects to assume the defense, the such defense shall be conducted by legal counsel chosen by it Distributor and satisfactory to the IssuerFund, to its officers and Board and directors, officers, employees or representatives, or to any controlling person or persons, defendant or defendants defendants, in the suit. In the event that Distributors Distributor elects to assume the defense of any such suit and retain such legal counsel, the Issuer Fund, its directors, officers, employees, representatives or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional legal counsel retained by them. If Distributors Distributor does not elect to assume the defense of any such suit, it Distributor will reimburse the IssuerFund, officers such directors, officers, employees, representatives or controlling person or persons, defendant or defendants in such suit for the reasonable fees and Board expenses of any legal counsel retained by them. Distributor agrees to promptly notify the Fund of the commencement of any litigation or proceedings against it or any of its directors, officers, employees or representatives in connection with the issue or sale of any Shares. The Fund agrees to indemnify and hold harmless Distributor and each of its directors, officers, employees, representatives and each person, if any, who controls Distributor within the meaning of Section 15 of SA-33 against any and all losses, liabilities, damages, claims or expenses (including the reasonable costs of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable legal counsel fees incurred in connection therewith) to which Distributor or such of its directors, officers, employees, representatives or controlling person may become subject under SA-33, under any other statute, at common law, or otherwise, arising out of the acquisition of any Shares by any person which (i) may be based upon any wrongful act by the Fund or any of Fund`s directors, officers, employees or representatives, or (ii) may be based upon any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, shareholder report or other information covering Shares filed or made public by the Fund or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such statement or omission was made in reliance upon information furnished to Distributor by the Fund. In no case (i) is the Fund`s indemnity in favor of the Distributor, or any person indemnified to be deemed to protect the Distributor or such indemnified person against any liability to which the Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of his duties or by reason of his reckless disregard of his obligations and duties under this Agreement, or (ii) is the Fund to be liable under its indemnity agreement contained in this Paragraph with respect to any claim made against Distributor, or person indemnified unless Distributor, or such person, as the case may be, shall have notified the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributor or upon such person (or after Distributor or such person shall have received notice of such service on any designated agent). However, failure to notify the Fund of any such claim shall not relieve the Fund from any liability which the Fund may have to Distributor or any person against whom such action is brought otherwise than on account of the Fund`s indemnity agreement contained in this Paragraph. The Fund shall be entitled to participate, at its own expense, in the defense, or, if the Fund so elects, to assume the defense of any suit brought to enforce any such claim, but, if the Fund elects to assume the defense, such defense shall be conducted by legal counsel chosen by the Fund and satisfactory to Distributor, to its directors, officers, employees or representatives, or to any controlling person or persons, defendant or defendants, in the suit. In the event that the Fund elects to assume the defense of any such suit and retain such legal counsel, Distributor, its directors, officers, employees, representatives or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional legal counsel retained by them. If the Fund does not elect to assume the defense of any such suit, the Fund will reimburse Distributor, such directors, officers, employees, representatives or controlling person or persons, defendant or defendants in such suit for the reasonable fees and expenses of any legal counsel retained by them. Distributors The Fund agrees to promptly notify the Issuer promptly Distributor of the commencement of any litigation or proceedings against it or any of its directors, officers, employees, or representatives in connection with the issue and or sale of any of the sharesShares.
Appears in 3 contracts
Samples: Underwriting Agreement (Price T Rowe Science & Technology Fund Inc), Underwriting Agreement (Price T Rowe High Yield Fund Inc), Underwriting Agreement (T Rowe Price Diversified Mid Cap Growth Fund Inc)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphparagraph except to the extent that the Fund is harmed by such delay. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members trustees and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraphparagraph except to the extent that the Distributor is harmed by such delay. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 3 contracts
Samples: Distribution Agreement (Fifth Third Funds), Distribution Agreement (Fifth Third Funds), Distribution Agreement (Fifth Third Funds)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx Xxxxributors, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Xxxxxxxxxx of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 3 contracts
Samples: General Distribution Agreement (Fidelity Advisor Series Viii), General Distribution Agreement (Fidelity Select Portfolios), Fidelity Advisor Series Viii
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1997 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx Xxxxributors, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Xxxxxxxxxx of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 3 contracts
Samples: General Distribution Agreement (Fidelity Advisor Series I), General Distribution Agreement (Fidelity Advisor Series I), Fidelity Advisor Series I
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors trustees or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does Fund elects not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and respective officers and each personpersons, if any, who controls control the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, and to its respective officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 3 contracts
Samples: Distribution Agreement (Cornercap Group of Funds /Va/), Distribution Agreement (Cornercap Group of Funds /Va/), Distribution Agreement (Cornercap Group of Funds /Va/)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Fund of any claim shall not relieve Distributors the Fund from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it The Fund shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claimany claims, but if Distributors the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Fund elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Fund does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.defense
Appears in 3 contracts
Samples: Distribution and Service Agreement (Van Kampen American Capital Limited Maturity Government Fund), Distribution and Service Agreement (Van Kampen American Capital Comstock Fund/), Distribution and Service Agreement (Van Kampen American Capital Life Investment Trust/)
Indemnification. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Securities Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer each Trust (as from time to time amendedamended by each Trust) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Securities Act, the 1940 Act or any other statute or the common law. However, the Issuer each Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer each Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer each Trust in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer each Trust or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, breach of this Agreement, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer each Trust to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer each Trust in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer each Trust of any claim shall not relieve the Issuer each Trust from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Each Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer each Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suiteach Trust. In the event the Issuer each Trust elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer each Trust does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Each Trust agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors Distributor shall reasonably cooperate with each Trust in connection with the defense. The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer each Trust and each of its Board members and trustees, officers and any person, who controls each personTrust, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Securities Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Securities Act, the 1940 Act or any other statute federal or state statute, regulation or rule, or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees and agents, including breach of this Agreement, or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer each Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer each Trust or any person indemnified to be deemed to protect the Issuer each Trust or any person against any liability to which the Issuer each Trust or such person would otherwise be subject by reason of willful misfeasance, breach of this Agreement, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer each Trust or any person indemnified unless the Issuer each Trust or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer each Trust or any such person (or after the Issuer each Trust or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer each Trust or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuereach Trust, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer each Trust or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuereach Trust, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer each Trust promptly of the commencement of any litigation or proceedings against it in connection with the issue each Trust and sale of any of the sharesShares. Each Trust shall reasonably cooperate with the Distributor in connection with the defense.
Appears in 3 contracts
Samples: Distribution Agreement (Laudus Trust), Distribution Agreement (Laudus Variable Insurance Trust), Distribution Agreement (Laudus Trust)
Indemnification. a. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act (each, a “Distributor Indemnified Person” and collectively, “Distributor Indemnified Persons”), against any loss, liability, claimclaims, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claimclaims, damages, damages or expense expenses and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement of Additional InformationSAI, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Trust does not agree to indemnify Distributors the Distributor Indemnified Person or hold it the Distributor Indemnified Person harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the this indemnity of the Issuer Trust in favor of Distributors or any person indemnified the Distributor Indemnified Persons to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Trust or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Trust to be liable under its this indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified Distributor Indemnified Person unless Distributors or person, as the case may be, Distributor Indemnified Person shall have notified the Issuer Trust in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors or any person Distributor Indemnified Person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphindemnity, except to the extent that the Trust is materially harmed by such delay. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitTrust. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or the Distributor Indemnified Person that are defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them, provided that the Trust is not obligated to reimburse the Distributor Indemnified Persons for more than one set of counsel to represent all Distributor Indemnified Persons in such suit. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors Trust does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Trust agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 3 contracts
Samples: Distribution Agreement (AQR Funds), Distribution Agreement (AQR Funds), Distribution Agreement (AQR Funds)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Fund of any claim shall not relieve Distributors the Fund from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it The Fund shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claimany claims, but if Distributors the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Fund elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.any
Appears in 3 contracts
Samples: Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust), Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust), Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until __________ and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to the Distributor, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 2 contracts
Samples: Fidelity School Street Trust/, Fidelity School Street Trust/
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until ____________ and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxx Distributor, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 2 contracts
Samples: Fidelity School Street Trust/, Fidelity School Street Trust/
Indemnification. 7.1. The Issuer agrees to Licensee shall indemnify and hold the Licensor, his heirs, executors, administrators, personal representatives and assigns harmless Distributors from and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any claim, action, suit, proceeding, loss, liability, claim, damages damage or expense (including without limitation reasonable attorneys’ fees) directly or indirectly arising from or related to (1) the reasonable cost of investigating or defending any alleged lossdevelopment, liabilityuse, claimmarketing, damagessale, sublicense, or expense and reasonable counsel fees incurred in connection therewith) arising by reason distribution of the Licensed Technology or any product that uses or embodies any of the Licensed Technology or use of any person acquiring such product by any sharesPerson or (2) infringement, based upon alleged infringement, misuse, alleged misuse, misappropriation, or alleged misappropriation, of any such product or activity on the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports patent or other information filed or made public by the Issuer (as from time rights of any Person. 7.2. Any Person entitled to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case indemnification hereunder shall (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability give prompt notice to the Issuer or its security holders Licensee of any claim with respect to which Distributors or such person would otherwise be subject by reason of wilful misfeasanceit seeks indemnification, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is permit the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, Licensee to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by such claim with counsel chosen by it and reasonably satisfactory to Distributors or person or personsthe indemnified Person and (iii) by notice to the Licensee, defendant or defendants in require the suit. In the event the Issuer elects Licensee to assume the defense of such claim with counsel reasonably satisfactory to the indemnified Person; provided, however, that any suit Person entitled to indemnification hereunder shall have the right to employ separate counsel and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants to participate in the suitdefense of such claim, shall bear but the fees and expenses of any additional such counsel retained by them. If shall be at the Issuer does not elect expense of such Person unless (a) the Licensee has agreed to pay such fees or expenses, (b) the Licensee shall have failed to assume the defense of any suit, it will reimburse Distributors, officers such claim and employ counsel reasonably satisfactory to such indemnified Person in a timely manner or directors or controlling person or persons, defendant or defendants (c) in the suitreasonable judgment of any such indemnified Person, based upon written advice of its counsel (d) a conflict of interest exists between such Person and the Licensee with respect to such claims that makes it inappropriate for the reasonable fees Licensee’s legal counsel to represent both such indemnified Person and expenses of any counsel retained by them. The Issuer agrees the Licensee or (e) there are defenses available to notify Distributors promptly of such indemnified Person that are not available to the commencement of any litigation or proceedings against it or any of its officers or trustees Licensee in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.such
Appears in 2 contracts
Samples: 14 License Agreement (Kolltan Pharmaceuticals Inc), 14 License Agreement (Kolltan Pharmaceuticals Inc)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1999 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 2 contracts
Samples: General Distribution Agreement (Fidelity School Street Trust/), Fidelity Beacon Street Trust
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within with a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse the Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant defendants or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant defendants or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxx Distributor, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 2 contracts
Samples: General Distribution Agreement (Fidelity Advisor Series I), Fidelity Advisor Series I
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until January 31, 1995 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 2 contracts
Samples: General Distribution Agreement (Fidelity Union Street Trust), General Distribution Agreement (Fidelity New York Municipal Trust Ii)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 2 contracts
Samples: General Distribution Agreement (Fidelity Wise Origin Bitcoin Fund), General Distribution Agreement (Fidelity Wise Origin Bitcoin Fund)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until _____ and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to the Distributor, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 2 contracts
Samples: General Distribution Agreement (Fidelity Union Street Trust Ii), General Distribution Agreement (Fidelity Union Street Trust Ii)
Indemnification. The Issuer Trust agrees to indemnify indemnify, defend and hold harmless Distributors and each of the Distributor, its directors and directors, officers and each person, if any, any person who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act free and harmless from and against any lossand all claims, liabilitydemands, claim, damages or expense liabilities and expenses (including the reasonable cost of investigating or defending such claims, demands or liabilities and any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) which the Distributor, its directors, officers or any such controlling person may incur under the 1933 Act, or under common law or otherwise, arising by reason out of any person acquiring any shares, or based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an any untrue statement of a material fact contained in the Registration Statement or omitted arising out of or based upon any alleged omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading under the 1933 Actmisleading, except insofar as such claims, demands, liabilities or expenses arise out of or are based upon any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the such untrue statement or omission was or alleged untrue statement or omission made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished in writing by the Distributor to the Issuer by Trust for use in the Registration Statement; provided, however, that this indemnity agreement shall not inure to the benefit of such Distributor, director, officer or controlling person unless a court of competent jurisdiction shall determine in a final decision on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of merits that the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject indemnified was not liable by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties duties, or by reason of its reckless disregard of its obligations and duties under this AgreementAgreement ("disabling conduct"), or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expenseor, in the defense orabsence of such a decision, if it so electsa reasonable determination, to assume based upon a review of the defense facts, that the indemnified person was not liable by reason of any suit brought to enforce disabling conduct, by (a) a vote of a majority of a quorum of trustees who are neither "interested persons" of the claim, but if Distributors elects to assume Trust as defined in Section 2(a)(19) of the defense, the defense shall be conducted by counsel chosen by it and satisfactory 1940 Act nor parties to the Issuerproceeding or (b) an independent legal counsel in a written opinion. The Trust's agreement to indemnify the Distributor, to its directors, officers and Board and to any controlling person or persons, defendant or defendants in as aforesaid is expressly conditioned upon the suit. In the event that Distributors elects to assume the defense Trust being promptly notified of any suit and retain counselaction brought against the Distributor, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuerits directors, officers or any controlling person, and Board such notification is to be given by letter or controlling person or persons, defendant or defendants in telegram addressed to the suit, for the reasonable fees and expenses of any counsel retained by themTrust at its principal business office. Distributors The Trust agrees to promptly notify the Issuer promptly Distributor of the commencement of any litigation or proceedings against it or any of its trustees or officers in connection with the issue and sale of Shares. The Distributor agrees to indemnify, defend and hold the Trust, its trustees, officers and any person who controls the Trust, if any, within the meaning of Section 15 of the shares1933 Act, free and harmless from and against any and all claims, demands, liabilities and expenses (including the cost of investigating or defending against such claims, demands or liabilities and any counsel fees incurred in connection therewith) which the Trust, its trustees, officers or any such controlling person may incur under the 1933 Act or under common law or otherwise, but only to the extent that such liability or expense incurred by the Trust, its trustees, officers or such controlling person resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by the Distributor to the Trust for use in the Registration Statement or Prospectus or shall arise out of or be based upon any alleged omission to state a material fact in connection with such information required to be stated in the Registration Statement or Prospectus or necessary to make such information not misleading. The Distributor's agreement to indemnify the Trust, its trustees, officers and any such controlling person as aforesaid is expressly conditioned upon the Distributor's being promptly notified of any action brought against the Trust, its trustees, officers or any such controlling person, such notification being given to the Distributor at its principal business office.
Appears in 2 contracts
Samples: First Eagle Trust Distribution and Services Agreement (First Eagle Trust), First Eagle Trust Distribution and Services Agreement (First Eagle Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within with a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse the Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any nay notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to toe enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant defendants or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant defendants or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1999 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to the Distributor, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 2 contracts
Samples: Fidelity Advisor Series Ii, Fidelity Advisor Series Ii
Indemnification. The Issuer Subject to the limitations set forth in Paragraph 12 below, each Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Securities Act, against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damage or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer any Fund (as from time to time-to-time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, Securities Act or any other statute or the common law. However, the Issuer each Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer it by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer any Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer a Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer a Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer applicable Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer a Fund of any claim shall not relieve the Issuer that Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Each Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer a Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitsuch Fund. In the event the Issuer a Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer a Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Each Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Trust and each Fund, the Managing Owner, and each of its Board members their respective officers, representatives or agents and officers and each person, if any, who controls the Issuer Trust and each Fund or the Managing Owner within the meaning of Section 15 of the 1933 ActSecurities Act (each, an “Indemnified Party”), against any loss, liability, damagesdamage, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damagesdamage, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Securities Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time-to-time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer such Fund or Managing Owner by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified Indemnified Party to be deemed to protect the Issuer or any person such party against any liability to which the Issuer or such person Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified Indemnified Party unless the Issuer or person, as the case may be, such Indemnified Party shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person Indemnified Party (or after the Issuer or such person Indemnified Party shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person Indemnified Party against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerIndemnified Party, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Indemnified Party or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerIndemnified Party, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Indemnified Party promptly of the commencement of any litigation or proceedings against it in connection with the issue Indemnified Party and sale of any of the sharesShares.
Appears in 2 contracts
Samples: Distribution Services Agreement (DB US Dollar Index Master Trust), Distribution Services Agreement (DB Multi-Sector Commodity Master Trust)
Indemnification. a. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act and Section 20(a) of the Securities Act of 1934 (the "1934 Act") against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground 1933 Act or any other statute or common law, alleging any wrongful act of the Trust or any of its employees or representatives, or based upon the grounds that the registration statementstatements, ProspectusProspectuses, Statement of Additional InformationSAIs, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common lawmisleading. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust in writing by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Trust in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Trust or its security holders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Trust to be liable under its indemnity agreement contained in this paragraph Section 10(a) with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, shall have notified Distributors the Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Trust of any claim shall not relieve Distributors the Trust from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise other than on account of its indemnity agreement contained in this paragraphSection 10(a). In the case of any notice to Distributors, it The Trust shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense of any suit brought to enforce the claimany claims, but if Distributors the Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerDistributor, to its officers and Board and to any controlling or person or persons, defendant or defendants in the suit. In the event that Distributors the Trust elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or directors or controlling persons, defendant person(s) or defendants defendant(s) in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Trust does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Trust agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or Trustees in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 2 contracts
Samples: Distribution Agreement (Kalmar Pooled Investment Trust), Distribution Agreement (Kalmar Pooled Investment Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until April 30, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust are separate and distinct from those of any and all other series.
Appears in 2 contracts
Samples: General Distribution Agreement (North Carolina Capital Management Trust), North Carolina Capital Management Trust
Indemnification. (a) The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground grounds that the registration statementRegistration Statement, Prospectus, Statement of Additional Informationany prospectus, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity indemnification of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its shareholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity indemnification agreement contained in this paragraph with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Fund of any claim shall not relieve Distributors the Fund from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity indemnification agreement contained in this paragraph. In the case of any notice to Distributors, it The Fund shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense of any suit brought to enforce the claimany claims, but if Distributors the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Fund elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Fund does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Fund agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or Directors in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 2 contracts
Samples: General Distribution Agreement (Capstone Church Capital Fund), General Distribution Agreement (Capstone Church Bond Fund)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Fund of any claim shall not relieve Distributors the Fund from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it The Fund shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claimany claims, but if Distributors the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Fund elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Fund does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or trustees or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.in
Appears in 2 contracts
Samples: Distribution and Service Agreement (Van Kampen American Capital Equity Income Fund/), Distribution and Service Agreement (Van Kampen American Capital Enterprise Fund/)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until January 31, 1997 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 2 contracts
Samples: General Distribution Agreement (Fidelity Select Portfolios), General Distribution Agreement (Fidelity Select Portfolios)
Indemnification. The Issuer agrees Each Shareholder agrees, jointly, to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance uponCompany against, and in conformity withto reimburse the Company for, information furnished to any corporate level income taxes (state and federal) which are imposed on the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph Company with respect to any period ending on or before December 31, 1996 and any interest and penalties associated therewith (collectively, the "Assessment") to which the Company may become subject. Each Shareholder shall make any payment required hereunder within 14 days after receipt of notice from the Company that a final determination or final settlement has occurred and a payment is due by the Company to an appropriate taxing authority. The cumulative liability of each Shareholder for all Assessments hereunder shall not exceed the aggregate amount of distributions made by the Company to such Shareholder with respect to stock of the Company since the earlier of (i) the date of the Company's election to be treated as an S corporation and (ii) the date a Shareholder became a Shareholder of the Company, which aggregate amount is set forth opposite the name of each Shareholder on SCHEDULE I; provided, however, the cumulative liability of Xxxx X. Xxxx ("Xxxx") shall be an amount equal to the difference between the aggregate amount distributed by the Company since it became an S corporation and the aggregate amount distributed to all other Shareholders, which amount is set forth opposite Xxxx'x name on SCHEDULE I. If any Shareholder has an indemnification claim made asserted against Distributors or any person indemnified unless Distributors or personhim under this Agreement which exceeds his pro rata share of the Assessment, as that Shareholder shall have the case may beright of contribution against all other Shareholders for an amount equal to the excess of the amount asserted against him over his pro Metro Information Services, Inc. Page 2 Tax Indemnification Agreement rata share of the Assessment. In no case, however, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall Shareholder be entitled to participate at its own expense receive a contribution payment from another Shareholder unless he has made or will make contemporaneously an indemnification payment to the Company in the defense, or, if it so elects, to assume the defense excess of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly his pro rata share of the commencement Assessment. For purposes of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against each Shareholder's pro rata share of each Assessment will equal the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing amount of the claim within a reasonable time after Assessment multiplied by the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have percentage appearing next to the Issuer or any person against whom the action is brought otherwise than Shareholder's name on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.SCHEDULE I.
Appears in 2 contracts
Samples: Tax Indemnification Agreement (Metro Information Services Inc), Tax Indemnification Agreement (Metro Information Services Inc)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Fund of any claim shall not relieve Distributors the Fund from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it The Fund shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claimany claims, but if Distributors the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Fund elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Fund does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or trustees or controlling person or persons, defendant or defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Fund agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or directors in connection with the issue and issuance or sale of any of the shares.Shares. The Distributor also covenants and agrees that it will indemnify and hold harmless the Fund and each of its trustees and officers and each person, if any, who controls the Fund within the meaning of Section 15 of the 1933 Act against any loss, liability, damage, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damage, claim or expense and
Appears in 2 contracts
Samples: Distribution Agreement (Explorer Institutional Trust), Distribution Agreement (Explorer Institutional Trust)
Indemnification. The Issuer agrees Funds agree to indemnify and hold harmless Distributors the Distributor and each of its their directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground grounds that the a registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer a Fund (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act, or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case case: (i) is the indemnity of the Issuer a Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is the Issuer a Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer particular Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer a Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit litigation or proceeding and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suit, suit covered by the indemnification set forth in this Agreement for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers officers, directors or trustees controlling person(s) in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Funds and each of its Board members and officers their officers, trustees and each person, if any, who controls the Issuer control a Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of of: (i) any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging alleging: (a) any wrongful act of Distributors the Distributor or any of its employees; or (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or alleging that the registration statement, Prospectusprospectus, Statement or statement of Additional Information, shareholder reports or other additional information filed or made public by the Issuer (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state an alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer a Fund by or on behalf of Distributorsthe Distributor. In no case case: (i) is the indemnity of Distributors the Distributor in favor of the Issuer a Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer a Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, ,. in the defense or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants any other defendant(s) in the suitsuit covered by the indemnification set forth in this Agreement. In the event that Distributors the Distributor elects to assume the defense of any suit litigation or proceeding and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse the IssuerFund, officers and Board or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suitlitigation or proceeding covered by the indemnification set forth in this Agreement , for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer a Fund promptly of the commencement of any litigation or proceedings proceeding against it it, its officers, its directors or its controlling person(s) in connection with the issue Fund and sale of any of the sharesShares.
Appears in 2 contracts
Samples: Distribution Agreement (Highland Floating Rate Opportunities Fund Ii), Distribution Agreement (Highland Global Allocation Fund)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within with a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse the Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant defendants or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant defendants or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxx Distributor, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 2 contracts
Samples: General Distribution Agreement (Fidelity Advisor Series I), Fidelity Advisor Series I
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent)) or (iii)shall the indemnity cover indirect, special or consequential damages or lost profits. However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent)) or (iii)shall the indemnity cover indirect, special or consequential damages or lost profits. However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 2 contracts
Samples: Distribution Agreement (MTB Group of Funds), Distribution Agreement (Wilmington Funds)
Indemnification. The Issuer agrees Funds agree to indemnify and hold harmless Distributors the Distributor and each of its their directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground grounds that the a registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer a Fund (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act, or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case case: (i) is the indemnity of the Issuer a Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is the Issuer a Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer particular Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer a Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit litigation or proceeding and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suit, suit covered by the indemnification set forth in this Agreement for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers officers, directors or trustees controlling person(s) in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Funds and each of its Board members and officers their officers, trustees and each person, if any, who controls the Issuer control a Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of of: (i) any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging alleging: (a) any wrongful act of Distributors the Distributor or any of its employees; or (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or alleging that the registration statement, Prospectusprospectus, Statement or statement of Additional Information, shareholder reports or other additional information filed or made public by the Issuer (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state an alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer a Fund by or on behalf of Distributorsthe Distributor. In no case case: (i) is the indemnity of Distributors the Distributor in favor of the Issuer a Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer a Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants any other defendant(s) in the suitsuit covered by the indemnification set forth in this Agreement. In the event that Distributors the Distributor elects to assume the defense of any suit litigation or proceeding and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse the IssuerFund, officers and Board or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suitlitigation or proceeding covered by the indemnification set forth in this Agreement, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer a Fund promptly of the commencement of any litigation or proceedings proceeding against it it, its officers, its directors or its controlling person(s) in connection with the issue Fund and sale of any of the sharesShares.
Appears in 2 contracts
Samples: Distribution Agreement (Highland Funds I), Distribution Agreement (Highland Funds Ii)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors HCFD and each of its directors and officers and each person, if any, who controls Distributors HCFD within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground grounds that the a registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act, or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors HCFD or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of DistributorsHCFD. In no case case: (i) is the indemnity of the Issuer a Fund in favor of Distributors HCFD or any person indemnified to be deemed to protect Distributors HCFD or any person against any liability to the Issuer Fund or its security holders to which Distributors HCFD or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is the Issuer a Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors HCFD or any person indemnified unless Distributors HCFD or person, as the case may be, shall have notified the Issuer particular Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors HCFD or any such person (or after Distributors HCFD or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer a Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit litigation or proceeding and retain counsel, DistributorsHCFD, officers or directors or controlling person or personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse DistributorsHCFD, officers or directors or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suit, suit covered by the indemnification set forth in this Agreement for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors HCFD promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers officers, directors or trustees controlling person(s) in connection with the issuance or sale of any of the sharesRights. Distributors HCFD also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers their officers, trustees and each person, if any, who controls the Issuer control a Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of of: (i) any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging alleging: (a) any wrongful act of Distributors HCFD or any of its employees; or (b) that any sales literature, advertisements, information, statements or representations used or made by HCFD or any of its affiliates or employees or alleging that the registration statement, Prospectusprospectus, Statement or statement of Additional Information, shareholder reports or other additional information filed or made public by the Issuer (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state an alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer a Fund by or on behalf of DistributorsHCFD. In no case case: (i) is the indemnity of Distributors HCFD in favor of the Issuer a Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is Distributors HCFD to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer a Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors HCFD in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors HCFD of any claim shall not relieve Distributors HCFD from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, HCFD it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce the claim, but and if Distributors HCFD elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants any other defendant(s) in the suitsuit covered by the indemnification set forth in this Agreement. In the event that Distributors HCFD elects to assume the defense of any suit litigation or proceeding and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expense of any additional counsel retained by them. If Distributors HCFD does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse the IssuerFund, officers and Board or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suitlitigation or proceeding covered by the indemnification set forth in this Agreement, for the reasonable fees and expenses of any counsel retained by them. Distributors HCFD agrees to notify the Issuer a Fund promptly of the commencement of any litigation or proceedings proceeding against it it, its officers, its directors or its controlling person(s) in connection with the issue Fund and sale of any of the sharesRights.
Appears in 2 contracts
Samples: Rights Offering Marketing Support Agreement (NexPoint Strategic Opportunities Fund), Rights Offering Marketing Support Agreement (NexPoint Credit Strategies Fund)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Fund of any claim shall not relieve Distributors the Fund from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it The Fund shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claimany claims, but if Distributors the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Fund elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Fund does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or trustees or controlling person or persons, defendant or defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Fund agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or directors in connection with the issue and issuance or sale of any of the shares.Shares. The Distributor also covenants and agrees that it will indemnify and hold harmless the Fund and each of its trustees and officers and each person, if any, who controls the Fund within the meaning of Section 15 of the 1933 Act against any loss, liability, damage, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any Shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of the Distributor or any of its employees or alleging that the registration statement, Prospectus, shareholder reports or other information filed or made public by the Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by or on behalf of the Distributor. In no case (i) is the indemnity of the Distributor in favor of the Fund or any person indemnified to be deemed to protect the Fund or any such person against any liability to which the Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligation and duties under this Amended Agreement, or (ii) is the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Fund or any person indemnified unless the Fund or person, as the case may be, shall have notified the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Fund or
Appears in 2 contracts
Samples: Distribution and Service Agreement (Van Kampen Equity Trust Ii), Distribution and Service Agreement (Van Kampen Tax Free Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 199 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 2 contracts
Samples: Fidelity Hastings Street Trust, Fidelity Hastings Street Trust
Indemnification. (a) The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act and/or Section 20(a) of the Securities Exchange Act of 1934 (the "1934 Act") against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense expense, and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground 1933 Act or any other statute or common law, alleging any wrongful act of the Trust or any of its employees or representatives, or based upon the grounds that the registration statementstatements, ProspectusProspectuses, Statement of Additional InformationSAIs, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements made therein not misleading under the 1933 Act, or any other statute or the common lawmisleading. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust in writing by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Trust in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Trust or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties duties, or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Trust to be liable under its indemnity agreement contained in this paragraph Section 10(a) with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise other than on account of its indemnity agreement contained in this paragraphSection 10(a). The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerDistributor, to its officers and Board and to any controlling or person or persons, persons defendant or defendants in the suit. In the event that Distributors the Trust elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or directors or controlling persons, defendant person(s) or defendants defendant(s) in the suit, suit shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Trust does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. Distributors The Trust agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or Trustees in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 2 contracts
Samples: Distribution Agreement (Brazos Mutual Funds), Distribution Agreement (Brazos Mutual Funds)
Indemnification. a. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act (each, a “Distributor Indemnified Person” and collectively, “Distributor Indemnified Persons”), against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement of Additional InformationSAI, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Trust does not agree to indemnify Distributors the Distributor Indemnified Persons or hold it the Distributor Indemnified Persons harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the this indemnity of the Issuer Trust in favor of Distributors or any person indemnified the Distributor Indemnified Persons to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Trust or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Trust to be liable under its this indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified Distributor Indemnified Person unless Distributors or person, as the case may be, Distributor Indemnified Person shall have notified the Issuer Trust in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors or any such person the Distributor Indemnified Person (or after Distributors or such person the Distributor Indemnified Person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors or any person Distributor Indemnified Person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphindemnity. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitTrust. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or the Distributor Indemnified Persons that are defendants in the suit, suit shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors Trust does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or Distributor Indemnified Persons that are defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them, provided that the Trust is not obligated to reimburse the Distributor Indemnified Persons for more than one set of counsel to represent all Distributor Indemnified Persons in such suit. Distributors The Trust agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 2 contracts
Samples: Form of Distribution Agreement (AARP Funds), Form of Distribution Agreement (AARP Funds)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its security holders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or the person shall have received notice of service on any designated agent). However, failure to notify the Fund of any claim shall not relieve the Fund from any liability which it may have to the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense, of any suit brought to enforce any claims, but if the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Distributor or person or persons, defendant or defendants in the suit. In the event the Fund elects to assume the defense of any suit and retain counsel, the Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Fund does not elect to assume the defense of any suit, it will reimburse the Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit for the reasonable fees and expenses of any counsel retained by them. The Fund agrees to notify the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or directors in connection with the issuance or sale of any of the Shares. The Distributor also covenants and agrees that it will indemnify and hold harmless the Fund and each of its trustees and officers and each person, if any, who controls the Fund within the meaning of Section 15 of the 1933 Act against any loss, liability, damage, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any Shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of the Distributor or any of its employees or alleging that the registration statement, Prospectus, shareholder reports or other information filed or made public by the Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by or on behalf of the Distributor. In no case (i) is the indemnity of the Distributor in favor of the Fund or any person indemnified to be deemed to protect the Fund or any such person against any liability to which the Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligation and duties under this Amended Agreement, or (ii) is the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Fund or any person indemnified unless the Fund or person, as the case may be, shall have notified the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Fund or person (or after the Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board trustees and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board trustees or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesShares.
Appears in 2 contracts
Samples: Distribution and Service Agreement (Van Kampen Equity Trust Ii), Distribution and Service Agreement (Van Kampen Trust)
Indemnification. The Issuer agrees to Adviser shall indemnify and hold harmless Distributors the Sub-Adviser, its officers and each of its directors and officers and each person, if any, who controls Distributors the Sub-Adviser within the meaning of Section 15 of the Securities Act of 1933 Act ("1933 Act") (any and all such persons shall be referred to as "Indemnified Party"), against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time matter to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common lawwhich this Agreement relates. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the this indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person particular Indemnified Party against any liability to which the Issuer or such person Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, Agreement or (ii) is Distributors the Adviser to be liable under its this indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified particular Indemnified Party unless the Issuer or person, as the case may be, such Indemnified Party shall have notified Distributors the Adviser in writing of the claim within a reasonable time after the summons or other first written notification legal process giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer Sub-Adviser or such controlling persons. The Sub-Adviser shall indemnify and hold harmless the Adviser and each of its directors and officers and each person shall have received notice if any who controls the Adviser within the meaning of service on Section 15 of the 1933 Act, against any designated agent). Howeverloss, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have liability, claim, damage or expense described in the foregoing indemnity, but only with respect to the Issuer Sub-Adviser's willful misfeasance, bad faith or gross negligence in the performance of its duties under this Sub-Advisory Agreement. In case any action shall be brought against the Adviser or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expenseso indemnified, in respect of which indemnity may be sought against the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defenseSub-Adviser, the defense Sub-Adviser shall be conducted by counsel chosen by it have the rights and satisfactory duties given to the IssuerAdviser, and the Adviser and each person so indemnified shall have the rights and duties given to its officers the Sub-Adviser by the provisions of subsections (i) and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense (ii) of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesthis section.
Appears in 2 contracts
Samples: LPT Variable Insurance Series Trust (LPT Variable Insurance Series Trust), LPT Variable Insurance Series Trust (LPT Variable Insurance Series Trust)
Indemnification. (a) The Issuer Trust agrees to indemnify and hold harmless Distributors Olstein and each of its employees, along with its general partner and the directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act general partner against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement Shares of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity beneficial interest of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesTrust, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Trust or any of its employees or alleging representatives, or based upon the grounds that the registration statementstatements, ProspectusProspectuses, Statement of Additional InformationSAI's, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading. However, insofar as the Trust does not agree to indemnify Olstein or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Trust in writing by or on behalf of DistributorsOlstein. In no case (i) is the indemnity of Distributors the Trust in favor of the Issuer Olstein or any person indemnified to be deemed to protect the Issuer Olstein or any person against any liability to the Trust or its security holders to which the Issuer Olstein or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross ordinary negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Trust to be liable under its indemnity agreement contained in this paragraph section with respect to any claim made against the Issuer or Olstein any person indemnified unless the Issuer Olstein or person, as the case may be, shall have notified Distributors the Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Olstein or any such person (or after the Issuer Olstein or such person shall have received notice of service on any designated agent). However, except to the extent the Trust is harmed thereby, failure to notify Distributors the Trust of any claim shall not relieve Distributors the Trust from any liability which it may have to the Issuer Olstein or any person against whom the such action is brought otherwise other than on account of its indemnity agreement contained in this paragraphsection. In the case of any notice to Distributors, it The Trust shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense of any suit brought to enforce the claimany claims, but if Distributors the Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Olstein or person or persons, defendant or defendants in the suit. In the event that Distributors the Trust elects to assume the defense of any suit and retain counsel, the Issuer Olstein, officers or trustees or controlling persons, defendant person(s) or defendants defendant(s) in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Trust does not elect to assume the defense of any suit, it will reimburse the IssuerOlstein, officers and Board or trustee or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Trust agrees to notify the Issuer Olstein promptly of the commencement of any litigation or proceedings against it or any of its officers or Trustees in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 2 contracts
Samples: Olstein Funds, Distribution Agreement (Olstein Funds)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent)) or (iii) shall the indemnity cover indirect, special or consequential damages or lost profits. However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent)) or (iii) shall the indemnity cover indirect, special or consequential damages or lost profits. However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 1 contract
Samples: Distribution Agreement (MTB Funds)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If , if the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers officers, trustees and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of (i) any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, . failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but . and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 1 contract
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Street, Boston, Massachusetts, and if to Dixxxxxxxxxx, xx 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Massachusetts. 14. Limitatixx xx Xxxxxxxxx - Xxxxxxxxxxxx xx xxxxxxxxx put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 1 contract
Samples: Fidelity Advisor Series Ii
Indemnification. a. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act and Section 20(a) of the Securities Act of 1934 (the “1934 Act”) against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground 1933 Act or any other statute or common law, alleging any wrongful act of the Trust or any of its employees or representatives, or based upon the grounds that the registration statementstatements, ProspectusProspectuses, Statement of Additional InformationSAIs, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common lawmisleading. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust in writing by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Trust in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Trust or its security holders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Trust to be liable under its indemnity agreement contained in this paragraph Section 10(a) with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, shall have notified Distributors the Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Trust of any claim shall not relieve Distributors the Trust from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise other than on account of its indemnity agreement contained in this paragraphSection 10(a). In the case of any notice to Distributors, it The Trust shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense of any suit brought to enforce the claimany claims, but if Distributors the Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerDistributor, to its officers and Board and to any controlling or person or persons, defendant or defendants in the suit. In the event that Distributors the Trust elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or directors or controlling persons, defendant person(s) or defendants defendant(s) in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Trust does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Trust agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or Trustees in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 1 contract
Samples: Distribution Agreement (Kalmar Pooled Investment Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within with a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse the Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any nay notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to toe enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant defendants or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant defendants or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 1 contract
Samples: General Distribution Agreement (Fidelity Advisor Series Ii)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until April 30, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxx Distributor, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: General Distribution Agreement (Fidelity Income Fund /Ma/)
Indemnification. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any shares, based upon the ground grounds that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Trust in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Trust or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Trust to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, any person shall have notified the Issuer Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Trust does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer Trust agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or of sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Trust and each of its Board members and officers and each person, if any, who controls the Issuer Trust within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, any Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Trust or any person indemnified to be deemed to protect the Issuer Trust or any person against any liability to which the Issuer Trust or such person would otherwise be subject by reason of f willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of or its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Trust or any person indemnified unless the Issuer Trust or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Trust or any upon such person (or after the Issuer Trust or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Trust or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of or any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerTrust, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Trust or controlling persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerTrust, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Trust promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 1 contract
Samples: General Distribution Agreement (Capstone Indexed Series Trust)
Indemnification. The Issuer Trust agrees to indemnify and hold harmless Distributors the --------------- Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectusprospectus, Statement of Additional Information, shareholder unitholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common lawmisleading. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Trust in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Trust or its security holders unitholders to which Distributors the Distributor or such person would otherwise be by subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors Trust to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any person shall have notified Distributors the Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify Distributors the Trust of any claim shall not relieve Distributors the Trust from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it The Trust shall be entitled to participate, participate at its own expense, expense in the defense ordefense, or if it so elects, to assume the defense of any suit brought to enforce the claimany claims, but if Distributors the Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling Distributor or person or persons, defendant or defendants in the suit. In the event that Distributors the Trust elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.by
Appears in 1 contract
Indemnification. 1. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act and Section 20(a) of the Securities Act of 1934 (the "1934 Act") against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground 1933 Act or any other statute or common law, alleging any wrongful act of the Trust or any of its employees or representatives, or based upon the grounds that the registration statementstatements, ProspectusProspectuses, Statement of Additional InformationSAIs, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common lawmisleading. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust in writing by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Trust in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Trust or its security holders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Trust to be liable under its indemnity agreement contained in this paragraph Section 10(a) with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, shall have notified Distributors the Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Trust of any claim shall not relieve Distributors the Trust from any liability which it may have to the Issuer Distributor or any person against whom the such action is brought otherwise other than on account of its indemnity agreement contained in this paragraphSection 10(a). In the case of any notice to Distributors, it The Trust shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense of any suit brought to enforce the claimany claims, but if Distributors the Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerDistributor, to its officers and Board and to any controlling or person or persons, defendant or defendants in the suit. In the event that Distributors the Trust elects to assume the defense of any suit and retain counsel, the Issuer Distributor, officers or directors or controlling persons, defendant person(s) or defendants defendant(s) in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Trust does not elect to assume the defense of any suit, it will reimburse the IssuerDistributor, officers and Board or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Trust agrees to notify the Issuer Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or Trustees in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 1 contract
Samples: Distribution Agreement (Kalmar Pooled Investment Trust)
Indemnification. a. The Issuer Trust agrees to indemnify and hold harmless Distributors the Placement Agent and each of its directors and officers and each person, if any, who controls Distributors the Placement Agent within the meaning of Section 15 of the 1933 Act (each, a “Placement Agent Indemnified Person” and collectively, “Placement Agent Indemnified Persons”), against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusoffering memorandum, Statement of Additional InformationSAI, shareholder reports or other information filed or made public used by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Trust does not agree to indemnify Distributors the Placement Agent Indemnified Persons or hold it the Placement Agent Indemnified Persons harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Placement Agent. In no case (i) is the this indemnity of the Issuer Trust in favor of Distributors or any person indemnified the Placement Agent Indemnified Persons to be deemed to protect Distributors the Placement Agent or any person against any liability to the Issuer Trust or its security holders to which Distributors the Placement Agent or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is the Issuer Trust to be liable under its this indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified Placement Agent Indemnified Person unless Distributors or person, as the case may be, Placement Agent Indemnified Person shall have notified the Issuer Trust in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors or any such person the Placement Agent Indemnified Person (or after Distributors or such person the Placement Agent Indemnified Person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors or any person Placement Agent Indemnified Person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphindemnity. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitTrust. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or the Placement Agent Indemnified Persons that are defendants in the suit, suit shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors Trust does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or Placement Agent Indemnified Persons that are defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them, provided that the Trust is not obligated to reimburse the Placement Agent Indemnified Persons for more than one set of counsel to represent all Placement Agent Indemnified Persons in such suit. Distributors The Trust agrees to notify the Issuer Placement Agent promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers in connection with the issue and issuance or sale of any of the sharesShares. No settlement shall be subject to indemnification hereunder unless the Placement Agent shall have approved such settlement (such approval not to be unreasonably withheld or delayed).
Appears in 1 contract
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any shares, based upon the ground grounds that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, any person shall have notified the Issuer Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such the person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees Directors in connection with the issuance or of sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, any Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) ), included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of or its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any upon such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of or any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.
Appears in 1 contract
Samples: General Distribution Agreement (Capstone Social Ethics & Religious Values Fund)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until January 31, 1994 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Dxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxd if to the Distributor, at 82 Dxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: General Distribution Agreement (Fidelity Union Street Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until January 31, ___ and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a 12b-1 Plan is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the 12b-1 Plan or this Agreement and have no financial interest in the operation of the 12b-1 Plan or in any agreements related to the 12b-1 Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Sxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxx Distributor, at 82 Devonshire Sxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: Fidelity Advisor Series Vii
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within with a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse the Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any nay notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant defendants or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant defendants or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Street, Boston, Massachusetts, and if to the Distributor, at 82 Devonshire Street, Bosxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: General Distribution Agreement (Fidelity Advisor Series Viii)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does Fund elects not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and respective officers and each personpersons, if any, who controls control the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, and to its respective officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 1 contract
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until January 31, 1997 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Street, Boston, Massachusetts, and if to Distributors, at 82 Devonshire Street, Boston, Massachusetts. 14. Limitatiox xx Xxxxxxxxx - Xxxxxxxxxxxx xx xxxxxxxxx put on notice of the limitatixx xx xxxxxxxxxxx xxxxxxxxx xx xxx xxxxx xx the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 1 contract
Samples: General Distribution Agreement (Fidelity Advisor Series I)
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors trustees and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damagesdamage, or expense and reasonable counsel fees incurred in connection therewith) ), arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading under the 1933 Act, Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors Fund in favor of the Issuer Distributor or any person indemnified to be deemed to protect the Issuer Distributor or any person against any liability to the Fund or its securityholders to which the Issuer Distributor or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Fund to be liable under its indemnity agreement contained in this paragraph Section with respect to any claim made against the Issuer Distributor or any person indemnified unless the Issuer Distributor or person, as the case may be, any such person shall have notified Distributors the Fund in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Distributor or any such person (or after the Issuer Distributor or the person shall have received notice of service on any designated agent). However, failure to notify the Fund of any claim shall not relieve the Fund from any liability which it may have to the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense, of any suit brought to enforce any claims, but if the Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Distributor or person or persons, defendant or defendants in the suit. In the event the Fund elects to assume the defense of any suit and retain counsel, the Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Fund does not elect to assume the defense of any suit, it will reimburse the Distributor, officers or trustees or controlling person or persons, defendant or defendants in the suit for the reasonable fees and expenses of any counsel retained by them. The Fund agrees to notify the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or directors in connection with the issuance or sale of any of the Shares. The Distributor also covenants and agrees that it will indemnify and hold harmless the Fund and each of its trustees and officers and each person, if any, who controls the Fund within the meaning of Section 15 of the 1933 Act against any loss, liability, damage, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damage, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any Shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of the Distributor or any of its employees or alleging that the registration statement, Prospectus, shareholder reports or other information filed or made public by the Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by or on behalf of the Distributor. In no case (i) is the indemnity of the Distributor in favor of the Fund or any person indemnified to be deemed to protect the Fund or any such person against any liability to which the Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligation and duties under this Amended Agreement, or (ii) is the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Fund or any person indemnified unless the Fund or person, as the case may be, shall have notified the Distributor in writing of the claim within a reasonable time after the summons or other first 5 20 written notification giving information of the nature of the claim shall have been served upon the Fund or person (or after the Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense defense, or, if it so elects, to assume the defense defense, of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board trustees and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling persons, defendant or defendants in the suit, shall bear the fees and expense expenses of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board trustees or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesShares.
Appears in 1 contract
Samples: Distribution and Service Agreement (Van Kampen American Capital Tax Free Trust)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1998 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a 12b-1 Plan is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the 12b-1 Plan or this Agreement and have no financial interest in the operation of the 12b-1 Plan or in any agreements related to the 12b-1 Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Sxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxx Distributor, at 82 Devonshire Sxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: Fidelity Advisor Series Vii
Indemnification. The Issuer To the fullest extent permitted by law and subject to the terms and conditions of this Section 28, Employer agrees to indemnify Executive from and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or demand, cause of action, legal action, and/or expense (including the reasonable cost “Losses”) which Executive may suffer, sustain or become subject to, as a result of investigating any claims, actions or defending causes of action brought against Executive by Sterling West Insurance Services, LLC, a North Carolina limited liability company, and/or any alleged lossof said company’s parents, liabilitysubsidiaries, claimpredecessors, damages, successors or expense and reasonable counsel fees incurred in connection therewithassigns (collectively “CRC”) arising by reason from or related to any agreements entered into between Executive and CRC (to the extent true and correct copies of such agreements have been provided to Employer prior to the date hereof), any person acquiring any sharesstatutory or common law claims of misappropriation of CRC’s confidential and/or trade secret information, based upon the ground that the registration statement, Prospectus, Statement and/or unfair competition or breach of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, fiduciary duty or any other statute claims or the common lawcauses of action regardless of how named or styled arising out of or related to said agreements and/or claims of misappropriation of trade secrets or confidential information by Executive and/or claims of unfair competition and/or breach of fiduciary duty between Executive and CRC. HoweverEmployer agrees to fully and completely hold harmless, the Issuer does defend and indemnify Executive against such claims brought by CRC against Executive; provided that Executive shall not agree be entitled to indemnify Distributors or hold it harmless indemnification by Employer hereunder to the extent that the statement or omission was made in reliance upon, (and in conformity with, information furnished only to the Issuer by extent) that Employer can demonstrate that Losses are attributable to facts or on behalf of Distributors. In no case (i) is the indemnity circumstances that constitute a breach of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to representations set forth on the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, certificate attached hereto as the case may be, Exhibit A. Executive shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first give Employer prompt written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability notice received by Executive for which it Executive may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense receive indemnification hereunder, except for claims or causes of action of which Executive is on notice as of the time of the execution of this Agreement. This indemnification obligation on the part of Employer shall include but not be limited to providing Executive with legal counsel to defend Executive against any such claims brought by CRC against Executive (which counsel shall be Xxxxxxxx & Xxxxx LLP or other counsel selected by Employer (as applicable, “Lead Counsel”)), paying any and all legal fees and costs of Lead Counsel in the defensedefense of such claims made by CRC, orpaying any and all other amounts (subject to the immediately following sentence) that may be incurred by Executive in defense of such claims by CRC including any settlement of such CRC claims against Executive, if it so electsand any judgment that maybe entered against Executive arising from any claims brought against Executive by CRC under this provision, in all cases subject to the terms and conditions of this Section 28. Employer shall have the right to assume control of the defense of any suit brought matter subject to enforce any claims, but if the Issuer elects indemnification pursuant to assume the defense, the defense shall be conducted by counsel chosen by it this Section 28 and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume while Employer is controlling the defense of any suit and retain counselsuch matter, Distributors, officers no legal costs or directors or controlling person or persons, defendant or defendants in expenses other than the suit, shall bear the fees costs and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to Lead Counsel shall be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties payable under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suitSection 28. In the event that Distributors elects to Employer does not assume control of the defense of any suit matter subject to indemnification pursuant to this Section 28 within a reasonable period of time after Employer has received written notice of such claim, Employer shall, upon written request from Executive, pay on a monthly basis the costs and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, expenses of counsel engaged by Executive as they are incurred (subject to reasonable documentation with respect thereto); provided that Employer shall bear not be required to pay the fees and expense disbursements of more than one firm. Employer shall obtain the prior written consent of Executive (which shall not be unreasonably withheld) before entering into any additional counsel retained by them. If Distributors settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against Executive or if such settlement does not elect expressly unconditionally release Executive from all liabilities with respect to assume such claim. Executive shall not be entitled to indemnification hereunder with respect to any settlement or agreement entered into without the defense prior written consent of Employer. In the event that any suitinjunctive relief is imposed against Executive and Executive’s employment is not terminated hereunder, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants Employer shall continue to pay Executive his regular compensation in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesordinary course while Executive remains employed hereunder.
Appears in 1 contract
Samples: Employment Agreement (Ryan Specialty Group Holdings, Inc.)
Indemnification. The Issuer agrees You agree to indemnify and hold harmless Distributors the Trust and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members Trustees and officers and each person, if any, who controls the Issuer Trust within the meaning of Section 15 of the 1933 ActSecurities Act of 1933, as amended, against any lossand all losses, liabilityclaims, damages, claim liabilities or expense litigation (including legal and other expenses) to which the reasonable cost Trust or such Trustees, officers or controlling person may become subject under such Act, under any other statute, at common law or otherwise, arising out of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason the acquisition of any shares by any person acquiring any shares, which (a) may be based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors by you or any of its your employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports representatives or other information filed (b) may be based upon any untrue statement or made public by the Issuer (as from time to time amended) included an alleged untrue statement of a material fact contained in a registration statement, prospectus or omitted statement of additional information covering shares of a Fund or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, insofar as the misleading if such statement or omission was made in reliance upon, and in conformity with upon information furnished or confirmed in writing to the Issuer Trust by you, or on behalf (c) may be incurred or arise by reason of Distributors. In your acting as the Trust's agent instead of purchasing and reselling shares as principal in distributing shares to the public, provided that in no case (i) is the your indemnity of Distributors in favor of a Trustee or officer of the Issuer Trust or any other person indemnified to be deemed to protect such Trustee or officer of the Issuer Trust or any other person against any liability to which the Issuer or any such person would otherwise be subject by reason of willful misfeasance, bad faith faith, or gross negligence in the performance of its his duties or by reason of its his reckless disregard of its obligations and duties under this Agreement, . You are not authorized to give any information or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to make any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing representations on behalf of the claim within a reasonable time after the summons Trust or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any shares other than the information and representations contained in a registration statement, prospectus, or statement of additional information covering shares, as such registration statement, prospectus and statement of additional information may be amended or supplemented from time to time. No person other than you is authorized to act as principal underwriter for the sharesTrust.
Appears in 1 contract
Samples: Distribution Agreement (John Hancock Investment Trust)
Indemnification. The Issuer Company agrees to indemnify and hold harmless Distributors and each of Fund Accountant, its directors and employees, agents, directors, officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act nominees from and against any lossand all claims, liabilitydemands, claimactions and suits, damages or expense (including the reasonable cost of investigating or defending and from and against any alleged lossand all judgments, liabilityliabilities, claimlosses, damages, or expense and costs, charges, reasonable counsel fees incurred in connection therewithand other expenses (including reasonable investigation expenses) arising by reason (collectively, "Losses") resulting from Fund Accountant's performance of any person acquiring any sharesservices under this Agreement or based, based if applicable, upon the ground that the registration statementreasonable reliance on information, Prospectusrecords, Statement of Additional Information, shareholder reports instructions or other information filed requests given or made public to Fund Accountant by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. HoweverCompany, the Issuer does investment adviser, fund accountant or custodian thereof; provided that this indemnification shall not agree apply to indemnify Distributors actions or hold omissions of Fund Accountant's bad faith, willful misfeasance, negligence or reckless disregard by it harmless to the extent that the statement or omission was made in reliance uponof its obligations and duties hereunder; The Fund Accountant shall indemnify, defend, and in conformity with, information furnished to hold the Issuer Company harmless from and against Losses caused by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful Fund Accountant's willful misfeasance, bad faith or gross negligence in the performance of its duties hereunder, or by reason of its reckless disregard of its obligations and duties under this Agreement, hereunder. The indemnification rights hereunder shall include the right to reasonable advances of defense expenses in the event of any pending or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph threatened litigation with respect to any claim made against Distributors or any person indemnified unless Distributors or personwhich indemnification hereunder may ultimately be merited, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or provided that any such person (advanced expenses shall be reimbursed by the indemnified party if an ultimate determination is made that indemnification is not merited under the circumstances. If in any case a party may be asked to indemnify or after Distributors or such person hold the other party harmless, the indemnifying party shall have received notice be fully and promptly advised of service on any designated agent). Howeverall pertinent facts concerning the situation in question, failure and it is further understood that the indemnified party will use all reasonable care to notify the Issuer indemnifying party promptly concerning any situation which presents or appears likely to present the probability of any such a claim for indemnification against the indemnifying party, but failure to do so in good faith shall not relieve affect the Issuer from rights hereunder. except to the extent the indemnifying party is materially prejudiced thereby. As to any liability matter eligible for indemnification, an indemnified party shall act reasonably and in accordance with good faith business judgment and shall not effect any settlement or confess judgment without the consent of the indemnifying party, which it may have to Distributors consent shall not be unreasonably withheld or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphdelayed. The Issuer indemnifying party shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if claims subject to this indemnity provision. If the Issuer indemnifying party elects to assume the defensedefense of any such claim, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and reasonably satisfactory to the Issuerindemnified party, to its officers and Board and to any controlling person or persons, defendant or defendants in the suitwhose approval shall not be unreasonably withheld. In the event that Distributors the indemnifying party elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, indemnified party shall bear the fees and expense expenses of any additional counsel retained by themit. If Distributors the indemnifying party does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, indemnified party for the reasonable fees and expenses of any counsel retained by themthe indemnified party. Distributors agrees to notify The indemnity and defense provisions set forth herein shall indefinitely survive the Issuer promptly termination of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesthis Agreement.
Appears in 1 contract
Samples: Fund Accounting Agreement (Mma Praxis Mutual Funds)
Indemnification. a. The Issuer Trust agrees to indemnify and hold harmless Distributors the Placement Agent and each of its directors and officers and each person, if any, who controls Distributors the Placement Agent within the meaning of Section 15 of the 1933 Act (each, a “Placement Agent Indemnified Person” and collectively, “Placement Agent Indemnified Persons”), against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusoffering memorandum, Statement of Additional InformationSAI, shareholder reports or other information filed or made public used by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Trust does not agree to indemnify Distributors the Placement Agent Indemnified Persons or hold it the Placement Agent Indemnified Persons harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Placement Agent. In no case (i) is the this indemnity of the Issuer Trust in favor of Distributors or any person indemnified the Placement Agent Indemnified Persons to be deemed to protect Distributors the Placement Agent or any person against any liability to the Issuer Trust or its security holders to which Distributors the Placement Agent or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is the Issuer Trust to be liable under its this indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified Placement Agent Indemnified Person unless Distributors or person, as the case may be, Placement Agent Indemnified Person shall have notified the Issuer Trust in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors or any such person the Placement Agent Indemnified Person (or after Distributors or such person the Placement Agent Indemnified Person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors or any person Placement Agent Indemnified Person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraphindemnity. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitTrust. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or the Placement Agent Indemnified Persons that are defendants in the suit, suit shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors Trust does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or Placement Agent Indemnified Persons that are defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them, provided that the Trust is not obligated to reimburse the Placement Agent Indemnified Persons for more than one set of counsel to represent all Placement Agent Indemnified Persons in such suit. Distributors The Trust agrees to notify the Issuer Placement Agent promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers in connection with the issue and issuance or sale of any of the sharesShares.
Appears in 1 contract
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground grounds that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act, or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case case: (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason reason, of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit litigation or proceeding and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suit, suit covered by the indemnification set forth in this Agreement for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers officers, directors or trustees controlling person(s) in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers officers, trustees and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of of: (i) any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging alleging: (a) any wrongful act of Distributors the Distributor or any of its employees; or (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or alleging that the registration statement, Prospectusprospectus, Statement statement of Additional Information, shareholder reports or other additional information filed or made public by the Issuer (as from time to time amended) included an alleged untrue statement of a material fact or omitted to state an alleged omission of a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case case: (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, ; or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit litigation or proceeding brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants any other defendant(s) in the suitsuit covered by the indemnification set forth in this Agreement. In the event that Distributors the Distributor elects to assume the defense of any suit litigation or proceeding and retain counsel, the Issuer Fund or controlling personsperson(s), defendant or defendants and any other defendant(s) in the suitlitigation or proceeding, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suitlitigation or proceeding, it will reimburse the IssuerFund, officers and Board or controlling person person(s), or persons, defendant or defendants any other defendant(s) in the suitlitigation or proceeding covered by the indemnification set forth in this Agreement, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings proceeding against it it, its officers, its directors or its controlling person(s) in connection with the issue Fund and sale of any of the sharesShares.
Appears in 1 contract
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after the Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, the Distributor officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until __________ and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxx Distributor, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: Colchester Street Trust
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until _____________ and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxx Distributor, at 82 Devonshire Stxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: Colchester Street Trust
Indemnification. The Issuer Trust agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Trust does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Trust in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Trust or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Trust to be liable under its indemnity agreement contained in this the paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Trust in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim claims shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Trust of any claim shall not relieve the Issuer Trust from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Trust shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Trust elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitTrust. In the event the Issuer Trust elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Trust does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person person(s) or persons, defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Trust agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings proceeding against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Trust and each of its Board members and officers and each person, if any, who controls the Issuer Trust within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Trust by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Trust or any person indemnified to be deemed to protect the Issuer Trust or any person against any liability to which the Issuer Trust or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Trust or any person indemnified unless the Issuer Trust or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Trust or any such person (or after the Issuer Trust or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, the Distributor it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted consulted by counsel chosen by it and satisfactory to the IssuerTrust, to its officers and Board and to any controlling person person(s) or persons, defendant or defendants defendant(s) in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Trust or controlling personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerTrust, officers and Board or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Trust promptly of the commencement of any litigation or proceedings against it in connection with the issue Trust and sale of any of the sharesShares.
Appears in 1 contract
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1999 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xo the Distributor, at 82 Devonshxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: Fidelity Advisor Series Ii
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until January 31, 1992 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to the Distributor, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: General Distribution Agreement (Daily Tax Exempt Money Fund /De/)
Indemnification. The Issuer agrees to indemnify Company shall indemnify, defend and hold harmless Distributors each Manager and Member, each person who holds a direct or indirect ownership interest in a Manager or Member, and the respective officers, directors, trustees, agents, employees and affiliates of its directors and officers and each personManager or Member or any such owner, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any and all claims, suits, actions or other proceedings and all related loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense judgments, settlements, obligations, liabilities, debts, damages and reasonable counsel costs and expenses (including fees and disbursements of attorneys and other professionals and court costs) incurred in connection therewith) arising by any of them by reason of anything any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement one or more of Additional Information, shareholder reports them does or other information filed or made public by the Issuer (as refrains from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Actdoing for, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance business or sale of any affairs of, the Company, provided such act(s) and/or **** Material omitted pursuant to a request for confidential treatment under Rule 24b-2 of the sharesExchange Act of 1934. Distributors also covenants Material filed separately with the Securities and agrees that it will indemnify and hold harmless the Issuer and each Exchange Commission. omission(s) were Exculpated Actions of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 such Manager or Member (or of the 1933 ActManager or Member related to the person seeking indemnification). Such indemnification shall be made from assets of the Company and no Member shall be personally liable to any indemnitee. The rights to indemnification under this section 11.1 will not limit other rights which any person may have at law or in equity, against any lossincluding common law rights to indemnification, liabilityreimbursement or contribution and other similar rights. Each person’s rights to indemnification provided for in the preceding paragraph shall include the right to have paid, damagesor to be reimbursed for, claim or expense (including the reasonable cost expenses incurred by such person in advance of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor final disposition of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph matter with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or which any such person (indemnity is or after may be provided and before final determination of such person’s ultimate entitlement to indemnification; provided, however, that the Issuer or payment of such expenses in advance of such final disposition shall be made only upon delivery to the Company of a written affirmation by such person shall have received notice of service on any designated agent). Howeverhis, failure her or its good faith belief that he, she or it has met the standard of conduct necessary for indemnification and a written undertaking by such person to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, repay all amounts so advanced if it shall ultimately be determined that such person is not entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person indemnification (under this Agreement or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesotherwise).
Appears in 1 contract
Samples: Escrow Agreement (Excelsior Lasalle Property Fund Inc)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claimsclaim, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributors, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of or the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce enforse the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suitsuits, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue issuer and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until March 31, 1999 and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx if to Distributors, at 82 Devxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00. Limitation of Liability - Distributors is expressly put on notice of the limitation of shareholder liability as set forth in the Declaration of Trust or other organizational document of the Issuer and agrees that the obligations assumed by the Issuer under this contract shall be limited in all cases to the Issuer and its assets. Distributors shall not seek satisfaction of any such obligation from the shareholders or any shareholder of the Issuer. Nor shall Distributors seek satisfaction of any such obligation from the Trustees or any individual Trustee of the Issuer. Distributors understands that the rights and obligations of each series of shares of the Issuer under the Issuer's Declaration of Trust or other organizational document are separate and distinct from those of any and all other series. 15. This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the choice of laws provisions thereof.
Appears in 1 contract
Samples: General Distribution Agreement (Variable Insurance Products Iii)
Indemnification. The Issuer Owner agrees to indemnify indemnify, defend and hold save Manager harmless Distributors and each of its directors and officers and each person, if any, who controls Distributors within the meaning of Section 15 of the 1933 Act against from any loss, liabilitycost, claim, damages or expense (including the reasonable cost of investigating or defending any alleged lossdamages, liability, claimpenalties or expenses, damages, statutory or expense otherwise arising from third party claims (including reasonable attorney fees and reasonable counsel fees costs incurred by Manager in the defense or prosecution thereof) in connection therewith) with or arising from this Agreement or with the operation and management of the premises, and from liability for injuries suffered by reason of any person acquiring any sharesOwner's officers, based upon the ground that the registration statementdirectors, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, agents and employees or any other statute persons on or about the common premises, excluding Manager's employees or Manager,; provided, however, that the indemnification provisions set forth in this Section 10 shall not apply to any such loss, cost, damage, liability, penalty or expense to the extent it is found in a final judgment by a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of Manager. Owner agrees that Manager shall not be liable for any error of judgment or for any mistake of fact or of law, or for anything which it may do or refrain from doing hereunder, except in cases of willful misconduct, gross negligence, or willful failure to comply with the terms of this Agreement. HoweverOwner shall cause Manager to be named as a named insured under all policies of liability insurance maintained by Owner against claims arising at the Properties. If any action, the Issuer does proceeding, or investigation is commenced, as to which Manager proposes to demand such indemnification, it shall notify Owner with reasonable promptness; provided, however, that any failure by Manager to notify Owner shall not agree to indemnify Distributors or hold it harmless relieve Owner from its obligations hereunder except to the extent that the statement Owner's ability to defend itself against such action, proceeding, or omission was made in reliance uponinvestigation is actually, and in conformity withmaterially prejudiced as a result of such lack of reasonably prompt notification. If Manager shall seek indemnification under this Section 10, information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of the Issuer in favor of Distributors or any person indemnified to be deemed to protect Distributors or any person against any liability to the Issuer or its security holders to which Distributors or such person would otherwise be subject by reason of wilful misfeasanceOwner, bad faith or gross negligence in the performance case of its duties or by reason of its reckless disregard of its obligations and duties under this Agreementa third party claim brought against Manager, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors or any person indemnified unless Distributors or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors or any such person (or after Distributors or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in therein and, to the defense, or, if extent that it so electswishes, to assume and direct the defense and settlement thereof with counsel reasonably satisfactory to Manager. After notice from Owner to Manager of any suit brought to enforce any claims, but if the Issuer elects its election to assume the defense, and direct the defense and settlement of a third party claim brought against Manager, Owner shall not be conducted liable to Manager (or any of its affiliates) under this Section 10 for any legal or other expenses subsequently incurred by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants Manager in the suit. In the event the Issuer elects to assume connection with the defense thereof other than reasonable costs of any suit and retain investigation; except that Manager shall have the right to employ counsel to represent it if, in its reasonable judgment, it is advisable for Manager to be represented by separate counsel, Distributors, officers or directors or controlling person or persons, defendant or defendants and in the suit, shall bear that event the fees and expenses of such separate counsel shall be paid by Manager. Notwithstanding the foregoing provisions of this Section 10, the Owner shall not, without the prior written consent of Manager, effect any additional counsel retained by them. If the Issuer does not elect to assume the defense settlement of any suit, it will reimburse Distributors, officers pending or directors or controlling person or persons, defendant or defendants threatened proceeding in the suit, for the reasonable fees and expenses respect of any counsel retained by them. The Issuer agrees to notify Distributors promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributors. In no case (i) is the indemnity of Distributors in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this AgreementManager is, or (ii) is Distributors to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or personreasonable foreseeability, as the case may be, shall have notified Distributors in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall could have been served upon the Issuer or any a party and indemnity could have been sought hereunder by Manager for a third party claim brought against Manager, unless such person (or after the Issuer or settlement includes an unconditional release of Manager from all liability arising out of such person shall have received notice of service on any designated agent). However, failure to notify Distributors of any claim shall not relieve Distributors from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributors, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the sharesproceeding.
Appears in 1 contract
Samples: Management Agreement (Philips International Realty Corp)
Indemnification. The Issuer agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the ground that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, or any other statute or the common law. However, the Issuer does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer of any claim shall not relieve the Issuer from any liability which it may have to Distributors the Distributor or any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Issuer elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors the Distributor or person or persons, defendant or defendants in the suit. In the event the Issuer elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. The Issuer agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the shares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer and each of its Board members and officers and each person, if any, who controls the Issuer within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any shares, based upon the 1933 Act or any other statute or common law, alleging any wrongful act of Distributors the Distributor or any of its employees or alleging that the registration statement, Prospectus, Statement of Additional Information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with information furnished to the Issuer by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer or any person indemnified to be deemed to protect the Issuer or any person against any liability to which the Issuer or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer or any person indemnified unless the Issuer or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer or any such person (or after the Issuer or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Issuer, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares. 12. Effective Date - This agreement shall be effective upon its execution, and unless terminated as provided, shall continue in force until __________ and thereafter from year to year, provided continuance is approved annually by the vote of a majority of the Board members of the Issuer, and by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and, if a plan under Rule 12b-1 under the Investment Company Act of 1940 is in effect, by the vote of those Board members of the Issuer who are not "interested persons" of the Issuer and who are not parties to the Distribution and Service Plan or this Agreement and have no financial interest in the operation of the Distribution and Service Plan or in any agreements related to the Distribution and Service Plan, cast in person at a meeting called for the purpose of voting on the approval. This Agreement shall automatically terminate in the event of its assignment. As used in this paragraph, the terms "assignment" and "interested persons" shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended. In addition to termination by failure to approve continuance or by assignment, this Agreement may at any time be terminated by either party upon not less than sixty days' prior written notice to the other party. 13. Notice - Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Issuer, at 82 Devonshire Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, xxx xx xx xxe Distributor, at 82 Devonshire Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. 00.
Appears in 1 contract
Samples: Colchester Street Trust
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, damages or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any such person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such any person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or the any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or persons, defendant or defendants in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person or persons, defendant or defendants in the suit. In the event that Distributors the Distributor elects to assume the defense of any suit and retain counsel, the Issuer Fund or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors the Distributor does not elect to assume the defense of any suit, it will reimburse the IssuerFund, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors The Distributor agrees to notify the Issuer Fund promptly of the commencement of any litigation or proceedings against it in connection with the issue Fund and sale of any of the sharesShares.
Appears in 1 contract
Indemnification. The Issuer Fund agrees to indemnify and hold harmless Distributors the Distributor and each of its directors and officers and each person, if any, who controls Distributors the Distributor within the meaning of Section 15 of the 1933 Act Act, against any loss, liability, claim, damages or expense expenses (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the ground that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer Fund (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading under the 1933 Act, the 1940 Act or any other statute or the common law. However, the Issuer Fund does not agree to indemnify Distributors the Distributor or hold it harmless to the extent that the statement or omission was made in reliance upon, and in conformity with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of the Issuer Fund in favor of Distributors the Distributor or any person indemnified to be deemed to protect Distributors the Distributor or any person against any liability to the Issuer Fund or its security holders to which Distributors the Distributor or such person would otherwise be subject by reason of wilful willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Issuer Fund to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against Distributors the Distributor or any person indemnified unless Distributors the Distributor or person, as the case may be, shall have notified the Issuer Fund in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon Distributors the Distributor or any such person (or after Distributors the Distributor or such person shall have received notice of service on any designated agent). However, failure to notify the Issuer Fund of any claim shall not relieve the Issuer Fund from any liability which it may have to Distributors or the any person against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. The Issuer Fund shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but and if the Issuer Fund elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to Distributors or person or persons, defendant or defendants in the suitFund. In the event the Issuer Fund elects to assume the defense of any suit and retain counsel, Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, shall bear the fees and expenses of any additional counsel retained by them. If the Issuer Fund does not elect to assume the defense of any suit, it will reimburse Distributorsthe Distributor, officers or directors or controlling person or personsperson(s), defendant or defendants defendant(s) in the suit, suit for the reasonable fees and expenses of any counsel retained by them. The Issuer Fund agrees to notify Distributors the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or trustees in connection with the issuance or sale of any of the sharesShares. Distributors The Distributor also covenants and agrees that it will indemnify and hold harmless the Issuer Fund and each of its Board members and officers and each person, if any, who controls the Issuer Fund within the meaning of Section 15 of the 1933 Act, against any loss, liability, damages, claim claims or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) arising by reason of any person acquiring any sharesShares, based upon the 1933 Act, the 1940 Act or any other statute or common law, alleging (a) any wrongful act of Distributors the Distributor or any of its employees or alleging (b) that any sales literature, advertisements, information, statements or representations used or made by the Distributor or any of its affiliates or employees or that the registration statement, Prospectusprospectus, Statement statement of Additional Informationadditional information, shareholder reports or other information filed or made public by the Issuer (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon, and in conformity with with, information furnished to the Issuer Fund by or on behalf of Distributorsthe Distributor. In no case (i) is the indemnity of Distributors the Distributor in favor of the Issuer Fund or any person indemnified to be deemed to protect the Issuer Fund or any person against any liability to which the Issuer Fund or such person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is Distributors the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Issuer Fund or any person indemnified unless the Issuer Fund or person, as the case may be, shall have notified Distributors the Distributor in writing of the claim within a reasonable time promptly after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Issuer Fund or any such person (or after the Issuer Fund or such person shall have received notice of service on any designated agent). However, failure to notify Distributors the Distributor of any claim shall not relieve Distributors the Distributor from any liability which it may have to the Issuer Fund or any person against whom the such action is brought otherwise than on account of its indemnity agreement contained in this paragraph. In the case of any notice to Distributorsthe Distributor, it shall be entitled to participate, participate at its own expense, expense in the defense defense, or, if it so elects, to assume the defense of any suit brought to enforce the claim, but and if Distributors the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the IssuerFund, to its officers and Board and to any controlling person or personsperson(s), defendant or defendants defendant(s) in the suit. In the event that Distributors elects to assume the defense of any suit and retain counsel, the Issuer or controlling persons, defendant or defendants in the suit, shall bear the fees and expense of any additional counsel retained by them. If Distributors does not elect to assume the defense of any suit, it will reimburse the Issuer, officers and Board or controlling person or persons, defendant or defendants in the suit, for the reasonable fees and expenses of any counsel retained by them. Distributors agrees to notify the Issuer promptly of the commencement of any litigation or proceedings against it in connection with the issue and sale of any of the shares.the
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