Common use of By the Fund Clause in Contracts

By the Fund. (i) The Fund agrees to indemnify and hold the Sub-Adviser, its officers and directors, and any person who controls the Sub-Adviser within the meaning of Section 15 of the 1933 Act (each, a “Sub-Adviser Indemnitee”) harmless from any and all direct liabilities, losses or damages (including reasonable attorneys’ fees) arising out of any claim, demand, action, suit or proceeding arising out of any misrepresentation of a material fact or the omission of a fact necessary to make information not misleading in the Registration Statement, any proxy statement, or any annual or semi-annual report to investors in the Fund (other than a misstatement or omission relating to disclosure about the Sub-Adviser approved by the Sub-Adviser or provided to the Adviser or the Fund by the Sub-Adviser). (ii) As to any matter disposed of by settlement or a compromise payment by such Sub-Adviser Indemnitee, pursuant to a consent decree or otherwise, no indemnification either for said payment or settlement shall be provided unless such payment or settlement was previously authorized by a majority of the full Board of Directors of the Fund. With respect to any action, suit or other proceeding voluntarily prosecuted by any Sub-Adviser Indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such Sub-Adviser Indemnitee was authorized by a majority of the full Board of Directors of the Fund. Notwithstanding the foregoing, the Fund shall not be obligated to provide any such indemnification to the extent such provision would waive any right that the Fund cannot lawfully waive. (iii) All determinations with respect to indemnification hereunder shall be made (1) by a final decision on the merits by a court or other body of competent jurisdiction before whom the proceeding was brought that such Sub-Adviser Indemnitee is not liable by reason of Disabling Conduct or, (2) in the absence of such a decision, by (i) a majority vote of a quorum of the Directors of the Fund who are neither “interested persons” of the Fund (as defined in Section 2(a)(19) of the 1940 Act), nor parties to the proceeding, or (ii) if such a quorum is not obtainable or even if obtainable, if a majority vote of such quorum so directs, independent legal counsel in a written opinion.

By the Fund. (i) The Fund hereby agrees to indemnify and hold the Sub-Adviser, its officers and directors, and any person who controls the Sub-Adviser within the meaning of Section 15 of the 1933 Act (each, a “Sub-Adviser Indemnitee”) harmless from any and all direct liabilities, losses or damages (including reasonable attorneys’ fees) arising out of any claim, demand, action, suit or proceeding arising out of any misrepresentation of a material fact or the omission of a fact necessary to make information not misleading in the Registration Statement, any proxy statement, or any annual or semi-annual report to investors in the Fund (other than a misstatement or omission relating to disclosure about the Sub-Adviser approved by the Sub-Adviser or provided to the Adviser or the Fund by the Sub-Adviser). (ii) As to any matter disposed of by settlement or a compromise payment by such Sub-Adviser Indemnitee, pursuant to a consent decree or otherwise, no indemnification either for said payment or settlement shall be provided unless such payment or settlement was previously authorized by a majority of the full Board of Directors of the Fund. With respect to any action, suit or other proceeding voluntarily prosecuted by any Sub-Adviser Indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such Sub-Adviser Indemnitee was authorized by a majority of the full Board of Directors of the Fund. Notwithstanding the foregoing, the Fund shall not be obligated to provide any such indemnification to the extent such provision would waive any right that the Fund cannot lawfully waive. (iii) All determinations with respect to indemnification hereunder shall be made (1) by a final decision on the merits by a court or other body of competent jurisdiction before whom the proceeding was brought that such Sub-Adviser Indemnitee is not liable by reason of Disabling Conduct or, (2) in the absence of such a decision, by (i) a majority vote of a quorum of the Directors of the Fund who are neither “interested persons” of the Fund (as defined in Section 2(a)(19) of the 1940 Act), nor parties to the proceeding, or (ii) if such a quorum is not obtainable or even if obtainable, if a majority vote of such quorum so directs, independent legal counsel in a written opinion.

By the Fund. (i) The Fund agrees to will indemnify and hold the Sub-AdviserCompany, each of its directors, officers and directorsagents and each underwriter, and any if any, of the Company's securities covered by such a registration statement, each person who controls the Sub-Adviser Company or such underwriter within the meaning of Section 15 the Securities Act and the rules and regulations thereunder, each Other Shareholder and each of the 1933 Act their officers, directors and partners, and each person controlling such Other Shareholder, against all claims, expenses, losses, damages and liabilities (each, a “Sub-Adviser Indemnitee”) harmless from any and all direct liabilities, losses or damages (including reasonable attorneys’ feesactions in respect thereof) arising out of or based on any claim, demand, action, suit untrue statement (or proceeding arising out of any misrepresentation alleged untrue statement) of a material fact contained in any such registration statement, preliminary or the final prospectus, offering circular or other document, or any omission of (or alleged omission) to state therein a material fact required to be stated therein or necessary to make information the statements therein not misleading misleading, and will reimburse the Company and such Other Shareholders, directors, officers, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating, defending or settling (except as provided below) any such claim, loss, damage, liability or action, in each case to the Registration Statementextent, any proxy but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or any annual or semi-annual report other document in reliance upon and in conformity with written information furnished to investors in the Company by the Fund (other than a misstatement or omission relating expressly for use therein; provided, however, the obligations of the Fund hereunder shall be limited to disclosure about an amount equal to the Sub-Adviser approved proceeds received by the Sub-Adviser or Fund from the Warrant Shares sold in such registration; provided to the Adviser or further, that the Fund by shall have no obligation to indemnify any underwriter or controlling person thereof if (i) the Sub-Adviser). person asserting the claim with respect to which indemnification is sought acquired the securities on which such claim is based from such underwriter, (ii) As to any matter disposed of by settlement the claim is based on an alleged untrue statement or a compromise payment by material omission made in connection with such Sub-Adviser Indemnitee, pursuant to a consent decree or otherwise, no indemnification either for said payment or settlement shall be provided unless such payment or settlement was previously authorized by a majority of the full Board of Directors of the Fund. With respect to any action, suit or other proceeding voluntarily prosecuted by any Sub-Adviser Indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such Sub-Adviser Indemnitee was authorized by a majority of the full Board of Directors of the Fund. Notwithstanding the foregoing, the Fund shall not be obligated to provide any such indemnification to the extent such provision would waive any right that the Fund cannot lawfully waive. sale and (iii) All determinations with respect the underwriter failed to indemnification hereunder shall be made (1) by send or deliver to the claimant, at or prior to the time that written confirmation of the sale was sent or delivered, a final decision on the merits by a court or other body of competent jurisdiction before whom the proceeding was brought that such Sub-Adviser Indemnitee is not liable by reason of Disabling Conduct or, (2) in the absence of such a decision, by (i) a majority vote copy of a quorum of the Directors of the Fund who are neither “interested persons” of the Fund prospectus (as defined in Section 2(a)(19) of the 1940 Actsame may have been amended or supplemented), nor parties to the proceedingif any then existed, which corrected such alleged misstatement or (ii) if such a quorum is not obtainable or even if obtainable, if a majority vote of such quorum so directs, independent legal counsel in a written opinionomission.

By the Fund. (i) The Fund hereby agrees to indemnify and hold the Sub-Adviser, its officers and directors, and any person who controls the Sub-Adviser within the meaning Indemnitee against any liabilities and expenses, including amounts paid in satisfaction of Section 15 of the 1933 Act judgments, in compromise or as fines and penalties, and counsel fees (each, a “all as provided in accordance with applicable state law) reasonably incurred by such Sub-Adviser Indemnitee”) harmless from any and all direct liabilities, losses Indemnitee in connection with the defense or damages (including reasonable attorneys’ fees) arising out disposition of any claim, demand, action, suit or proceeding arising out other proceeding, whether civil or criminal, before any court or administrative or investigative body in which he may be or may have been involved as a party or otherwise or with which he may be or may have been threatened, while acting in any capacity set forth above in this paragraph or thereafter by reason of his having acted in any such capacity, except with respect to any matter as to which he shall have been adjudicated not to have acted in good faith in the reasonable belief that his action was in the best interest of the Fund and furthermore, in the case of any misrepresentation of a material fact or criminal proceeding, so long as he had no reasonable cause to believe that the omission of a fact necessary to make information not misleading in the Registration Statementconduct was unlawful, any proxy statementprovided, or any annual or semi-annual report to investors in the Fund however, that (other than a misstatement or omission relating to disclosure about the 1) no Sub-Adviser approved by Indemnitee shall be indemnified hereunder against any liability to the Fund or its shareholders or any expense of such Sub-Adviser or provided to the Adviser or the Fund Indemnitee arising by the Sub-Adviser). reason of (i) willful misfeasance, (ii) As bad faith, (iii) gross negligence (iv) reckless disregard of the duties involved in the conduct of his position (the conduct referred to in such clauses (i) through (iv) being sometimes referred to herein as “Disabling Conduct”), (2) as to any matter disposed of by settlement or a compromise payment by such Sub-Adviser Indemnitee, pursuant to a consent decree or otherwise, no indemnification either for said payment or settlement for any other expenses shall be provided unless there has been a determination that such payment settlement or settlement was previously authorized by a majority compromise is in the best interests of the full Board of Directors Fund and that such Sub-Adviser Indemnitee appears to have acted in good faith in the reasonable belief that his action was in the best interests of the Fund. With Fund and did not involve Disabling Conduct by such Sub-Adviser Indemnitee and (3) with respect to any action, suit or other proceeding voluntarily prosecuted by any Sub-Adviser Indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such Sub-Adviser Indemnitee was authorized by a majority of the full Board of Directors of the Fund. Notwithstanding the foregoing, the Fund shall not be obligated to provide any such indemnification to the extent such provision would waive any right that the Fund cannot lawfully waive. (ii) The Fund shall make advance payments in connection with the expenses of defending any action with respect to which indemnification might be sought hereunder if the Fund receives a written affirmation of the Sub-Adviser Indemnitee’s good faith belief that the standard of conduct necessary for indemnification has been met and a written undertaking to reimburse the Fund unless it is subsequently determined that he is entitled to such indemnification and if the Directors of the Fund determine that the facts then known to them would not preclude indemnification. In addition, at least one of the following conditions must be met: (1) the Sub-Adviser Indemnitee shall provide adequate security for his undertaking, (2) the Fund shall be insured against losses arising by reason of any lawful advances, (3) a majority of a quorum of Directors of the Fund who are neither “interested persons” of the Fund (as defined in Section 2(a)(19) of the 0000 Xxx) nor parties to the proceeding (“Disinterested Non-Party Directors”) or an independent legal counsel in a written opinion, shall determine, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is reason to believe that the Sub-Adviser Indemnitee ultimately will be found entitled to indemnification or (4) there is not a Disinterested Non-Party Director, Sub-Adviser Indemnitee provides the written affirmation referred to above. (iii) All determinations with respect to indemnification hereunder shall be made (1) by a final decision on the merits by a court or other body of competent jurisdiction before whom the proceeding was brought that such Sub-Adviser Indemnitee is not liable by reason of Disabling Conduct or, (2) in the absence of such a decision, by (i) a majority vote of a quorum of the Disinterested Non-Party Directors of the Fund who are neither “interested persons” of the Fund (as defined in Section 2(a)(19) of the 1940 Act), nor parties to the proceedingFund, or (ii) if such a quorum is not obtainable or even if obtainable, if a majority vote of such quorum so directs, independent legal counsel in a written opinion. (iv) Each Sub-Adviser Indemnitee shall, in the performance of its duties, be fully and completely justified and protected with regard to any act or any failure to act resulting from reliance in good faith upon the books of account or other records of the Fund, upon an opinion of counsel, or upon reports made to the Fund by any of the Fund’s officers or employees or by any advisor, administrator, manager, distributor, selected dealer, accountant, appraiser or other expert or consultant selected with reasonable care by the Directors, officers or employees of the Fund, regardless of whether such counsel or other person may also be a Director. (v) The rights accruing to any Sub-Adviser Indemnitee under these provisions shall not exclude any other right to which he may be lawfully entitled.

By the Fund. (i) 1. The Fund agrees authorizes the Distributor to indemnify use the Prospectus in connection with the sale of Shares. The Fund shall indemnify, defend and hold the Sub-AdviserDistributor, and each of its officers and present or former directors, members, officers, employees, representatives and any person who controls or previously controlled the Sub-Adviser Distributor within the meaning of Section 15 of the 1933 Act (eachcollectively, a “Sub-Adviser IndemniteeIndemnitees”) ), free and harmless from and against any and all direct losses, claims, demands, liabilities, losses or damages and expenses (including reasonable attorneys’ feesthe costs of investigating or defending any alleged losses, claims, demands, liabilities, damages or expenses and any counsel fees incurred in connection therewith) that the Distributor and each of its Indemnitees may incur under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws) or any rule or regulation thereunder, or under common law or otherwise: arising out of or based upon any untrue statement, or alleged untrue statement, of a material fact contained in the registration statement or any prospectus, as from time to time amended or supplemented, or an annual or interim report to shareholders, or arising out of or based upon any omission, or alleged omission, to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading; provided, however, that the Fund’s obligation to indemnify the Distributor and any of the foregoing indemnitees shall not be deemed to cover any losses, claims, demands, liabilities, damages or expenses arising out of any untrue statement or alleged untrue statement or omission or alleged omission made in the registration statement, prospectus, or annual or interim report in reliance upon and in conformity with information relating to the Distributor and furnished to the Fund or its counsel by the Distributor for the purpose of, and used in, the preparation thereof. 2. 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 such loss, claim, demand, actionliability, suit damage or proceeding arising out of any misrepresentation of a material fact or the omission of a fact necessary to make information not misleading in the Registration Statementexpense, any proxy statement, or any annual or semi-annual report to investors in but if the Fund (other than a misstatement or omission relating elects to disclosure about assume the Sub-Adviser defense, such defense shall be conducted by counsel chosen by the Fund and approved by the Sub-Adviser or provided to Distributor, which approval shall not be unreasonably withheld. In the Adviser or event the Fund elects to assume the defense of any such suit and retain such counsel, the indemnified defendant or defendants in such 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 such suit, or in case the Distributor does not, in the exercise of reasonable judgment, approve of counsel chosen by the Sub-Adviser). (ii) As to any matter disposed of by settlement or a compromise payment by such Sub-Adviser Indemnitee, pursuant to a consent decree or otherwise, no indemnification either for said payment or settlement shall be provided unless such payment or settlement was previously authorized by a majority of the full Board of Directors of the Fund. With respect to any action, suit or other proceeding voluntarily prosecuted by any Sub-Adviser Indemnitee as plaintiff, indemnification shall be mandatory only if the prosecution of such action, suit or other proceeding by such Sub-Adviser Indemnitee was authorized by a majority of the full Board of Directors of the Fund. Notwithstanding the foregoing, the Fund will reimburse the indemnified person or persons named as defendant or defendants in such suit, for the reasonable fees and expenses of any counsel retained by the Distributor and them. The Fund’s agreement for indemnity contained in this Section IV.A. and the Fund’s representations and warranties in this Agreement shall not be obligated to provide remain operative and in full force and effect regardless of any such indemnification investigation made by or on behalf of the Distributor, and each of its present or former directors, officers, employees, representatives or any controlling person, and shall survive the delivery of any Shares and the termination of this Agreement. This agreement of indemnity will inure exclusively to the extent such provision would waive Distributor’s benefit, to the benefit of each of its present or former directors, members, officers, employees or representatives or to the benefit of any right that controlling persons and their successors. The Fund agrees promptly to notify the Distributor of the commencement of any litigation or proceedings against the Fund cannot lawfully waive. (iii) All determinations or any of its officers or Trustees in connection with respect to indemnification hereunder shall be made (1) by a final decision on the merits by a court or other body issue and sale of competent jurisdiction before whom the proceeding was brought that such Sub-Adviser Indemnitee is not liable by reason of Disabling Conduct or, (2) in the absence of such a decision, by (i) a majority vote of a quorum any of the Directors of the Fund who are neither “interested persons” of the Fund (as defined in Section 2(a)(19) of the 1940 Act), nor parties to the proceeding, or (ii) if such a quorum is not obtainable or even if obtainable, if a majority vote of such quorum so directs, independent legal counsel in a written opinionShares.