Common use of Indemnification and Standard of Care Clause in Contracts

Indemnification and Standard of Care. A. The Trust shall indemnify, defend and hold the Distributor and each of its present or former members, officers, employees, representatives and any person who controls or previously controlled the Distributor within the meaning of Section 15 of the 1933 Act, free and harmless from and against any and all losses, claims, demands, liabilities, damages and expenses (including the reasonable costs of investigating or defending any alleged losses, claims, demands, liabilities, damages or expenses and any reasonable counsel fees incurred in connection therewith) (collectively, “Losses”), which the Distributor, each of its present and former members, officers, employees or representatives or any such controlling person may incur under the 1933 Act, the 1934 Act, any other statute (including state securities 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 in any annual or interim report to shareholders, or in any advertisements or sales literature prepared by the Trust or its agents, 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 not misleading, or based upon the Trust’s failure to comply with the terms of this Agreement or applicable law; provided, however, that the Trust’s obligation to indemnify the Distributor and any of the foregoing indemnitees shall not be deemed to cover any Losses arising out of any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, Prospectus, annual or interim report, or any such advertisement or sales literature in reliance upon and in conformity with information relating to the Distributor and furnished to the Trust or its counsel by the Distributor in writing. The Trust’s agreement to indemnify the Distributor, and any of the foregoing indemnitees, as the case may be, with respect to any action or claim of loss brought by a third party, is expressly conditioned upon the Trust being notified of such action or claim of loss brought against the Distributor, or any of the foregoing indemnitees, within thirty (30) days after the summons or other first legal process giving information of the nature of the claim shall have been served upon the Distributor, or such other indemnitee, unless the failure to give notice does not prejudice the Trust. Such notification shall be given pursuant to the notice provisions set forth in Section 13 below.

Indemnification and Standard of Care. A. The Trust Custodian shall indemnify, defend and hold give the Distributor and each Account assets at least the same care it gives its own property of its present or former members, officers, employees, representatives and any person who controls or previously controlled the Distributor within the meaning of Section 15 of the 1933 Act, free and harmless from and against any and all losses, claims, demands, liabilities, damages and expenses (including the reasonable costs of investigating or defending any alleged losses, claims, demands, liabilities, damages or expenses and any reasonable counsel fees incurred in connection therewith) (collectively, “Losses”), which the Distributor, each of its present and former members, officers, employees or representatives or any such controlling person may incur under the 1933 Acta similar nature. In addition, the 1934 Act, any other statute (including state securities laws) or any rule or regulation thereunder, or under common law or otherwise, arising Custodian shall be held to the exercise of reasonable care in carrying 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 in any annual or interim report to shareholders, or in any advertisements or sales literature prepared by the Trust or its agents, 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 not misleading, or based upon the Trust’s failure to comply with the terms provisions of this Agreement or applicable lawAgreement; provided, however, that to the Trustextent not prohibited by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as applicable, the Custodian is not responsible or liable for, and the Insurance Company will promptly indemnify and hold the Custodian harmless from and against, any and all direct costs, expenses, losses, damages, charges, reasonable counsel fees, payments and liabilities that are incurred by the Custodian or for which the Custodian is held to be liable, arising out of or attributable to the Custodian’s obligation to indemnify the Distributor and any entrance into this Agreement, as a result of the foregoing indemnitees Custodian following any Proper Instructions, or as a result of any other action or inaction of the Custodian in the performance of its duties under this Agreement; and provided, further, that such indemnity and hold harmless obligation shall not apply to any costs, expenses, losses, damages, charges, reasonable counsel fees, payments or liabilities to the extent arising out of the Custodian’s negligence, bad faith or willful misconduct. Custodian shall be entitled to rely on and may act upon advice of counsel (who may be counsel for the Insurance Company and/or the Account) on all matters, and shall be without liability for any action reasonably taken or omitted pursuant to such advice. So long as and to the extent that the Custodian exercises such reasonable care, the Custodian shall not be deemed to cover any Losses arising out responsible for the title, validity or genuineness of any untrue statement property or alleged untrue statement evidence of title thereto received by it or omission delivered by it pursuant to this Agreement and shall be held harmless in acting upon any notice, request, consent, certificate or alleged omission made in other instrument reasonably believed by it to be genuine and to be signed by the Registration Statementproper party or parties, Prospectus, annual or interim report, or including any such advertisement or sales literature in reliance upon and in conformity with information relating futures commission merchant acting pursuant to the Distributor and furnished terms of a three-party futures or options agreement. Notwithstanding anything herein to the Trust or its counsel by contrary (but subject to the Distributor in writing. The Trust’s agreement to indemnify provisions of the Distributorsecond paragraph of this Section 13.1 and the provisions of Section 13.2 below), and any of the foregoing indemnitees, as the case may be, except with respect to Foreign Sub-Custodians in certain countries set forth on a separate written schedule, incorporated herein by reference, as it may be amended by mutual consent of the parties from time to time, Custodian shall be liable to the Insurance Company and Account for any action loss which shall occur as the result of the failure of the Custodian or a Foreign Sub-Custodian to exercise reasonable care and diligence with respect to the safekeeping of the Account’s assets to the same extent that the Custodian would be liable to the Insurance Company and Account if the Custodian were holding such assets in New York; provided, however, that regardless of whether assets are maintained in the custody of a Foreign Sub-Custodian or a Foreign Securities System, the Custodian shall not be liable for any loss, damage, cost, expense, liability or claim resulting from or caused by nationalization, expropriation, currency restrictions, acts of loss brought by war, revolution, riots or terrorism where the Foreign Sub-Custodian has otherwise acted with reasonable care; and provided, further, that Custodian shall not be responsible for the insolvency of a third party, Foreign Sub-Custodian which is expressly conditioned upon the Trust being notified of such action not an affiliate or claim of loss brought against the Distributor, or any subsidiary of the foregoing indemniteesCustodian unless such appointment was made negligently or in bad faith. As to the Foreign Sub-Custodians employed in the countries listed on such separate written schedule from time to time, within thirty (30) days after the summons Custodian shall have no more or other first legal process giving information less responsibility or liability to the Insurance Company and Account on account of any actions or omissions of any such Foreign Sub-Custodian so employed than such Foreign Sub-Custodian has to the Custodian. At the request of the nature of Insurance Company, provided that each such request is reasonable and in good faith, Custodian agrees to reasonably and in good faith re-evaluate the claim shall have been served upon prevailing circumstances in the Distributor, or countries then listed on such other indemnitee, unless the failure separate written schedule to give notice does not prejudice the Trust. Such notification shall determine whether any such country should be given pursuant to the notice provisions set forth in Section 13 belowremoved from such schedule.

Indemnification and Standard of Care. A. The Trust shall indemnifyAs a material part of the consideration for the agreement of Xxxxxxxx Xxxxx to furnish its services under this Agreement, defend the Company agrees (i) to indemnify and hold the Distributor harmless Xxxxxxxx Xxxxx and each of its affiliates, and their respective past, present or former membersand future directors, officers, partners, members, employees, representatives agents, representatives, advisors, subcontractors and any person who controls or previously controlled controlling persons (collectively, the Distributor within “Indemnified Parties”), to the meaning of Section 15 of the 1933 Actfullest extent lawful, free and harmless from and against any and all losses, claims, demands, liabilities, damages and expenses (including the reasonable costs of investigating or defending any alleged losses, claims, demands, liabilities, damages or expenses and any reasonable counsel fees incurred liabilities (or actions in connection therewith) (collectively, “Losses”respect thereof), which the Distributor, each of its present and former members, officers, employees joint or representatives or any such controlling person may incur under the 1933 Act, the 1934 Act, any other statute (including state securities laws) or any rule or regulation thereunder, or under common law or otherwiseseveral, arising out of or based upon any untrue statementrelated to Xxxxxxxx Lokey’s engagement under, or alleged untrue statementany matter referred to in, this Agreement, and (ii) to reimburse each Indemnified Party for all expenses (including, without limitation, the reasonable fees and expenses of a material fact contained counsel) as they are incurred in the Registration Statement connection with investigating, preparing, pursuing, defending, settling, compromising or otherwise becoming involved in any action, suit, dispute, inquiry, investigation or proceeding, pending or threatened, brought by or against any person or entity (including, without limitation, any shareholder or derivative action or any Prospectusclaim to enforce this Agreement), as from time to time amended or supplemented, or in any annual or interim report to shareholders, or in any advertisements or sales literature prepared by the Trust or its agents, or arising out of or based upon related to such engagement or matter. However, the Company shall not be liable under the foregoing indemnification provision for any omissionloss, claim, damage or alleged omissionliability which is finally judicially determined by a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Indemnified Party. If for any reason the foregoing indemnification or reimbursement is unavailable to any Indemnified Party or insufficient fully to indemnify any Indemnified Party or to hold it harmless, then the Company shall contribute to state therein the amount paid or payable by such Indemnified Party as a material fact required result of the losses, claims, damages, liabilities or expenses referred to be stated therein in subsections (i) or necessary (ii) of such indemnification or reimbursement provisions in such proportion as is appropriate to make reflect the statements therein not misleadingrelative benefits received by the Company, or based upon on the Trust’s failure to comply one hand, and Xxxxxxxx Xxxxx, on the other hand, in connection with the terms of matters contemplated by this Agreement or applicable law; providedAgreement. If, however, that the Trust’s obligation allocation provided by the immediately preceding sentence is not permitted by applicable law, then the Company shall contribute to indemnify such amount paid or payable by such Indemnified Party in such proportion as is appropriate to reflect not only such relative benefits, but also the Distributor and any relative fault of the foregoing indemnitees Company (and its affiliates, and their respective directors, employees, agents and other advisors), on the one hand, and such Indemnified Party, on the other hand, in connection therewith, as well as any other relevant equitable considerations. Notwithstanding the foregoing, in no event shall not the Indemnified Parties be required to contribute an aggregate amount in excess of the amount of fees actually received by Xxxxxxxx Xxxxx from the Company pursuant to this Agreement, except, with respect to an Indemnified Party, to the extent of any losses, claims, damages, liabilities or expenses that are finally judicially determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnified Party. Relative benefits received by the Company, on the one hand, and Xxxxxxxx Xxxxx, on the other hand, shall be deemed to cover any Losses arising out of any untrue statement or alleged untrue statement or omission or alleged omission made be in the Registration Statement, Prospectus, annual same proportion as (i) the total value paid or interim report, received or any such advertisement contemplated to be paid or sales literature in reliance upon and in conformity with information relating to the Distributor and furnished to the Trust or its counsel received by the Distributor in writing. The Trust’s agreement to indemnify the DistributorCompany, and any of the foregoing indemniteesits security holders, creditors, and other affiliates, as the case may be, with respect pursuant to the transaction(s) (whether or not consummated) contemplated by the engagement hereunder, bears to (ii) the fees received by Xxxxxxxx Xxxxx under this Agreement. The Company shall not settle, compromise or consent to the entry of any action judgment in or claim otherwise seek to terminate any pending or threatened action, suit, dispute, inquiry, investigation or proceeding arising out of loss brought by a third party, is expressly conditioned upon the Trust being notified of such action or claim of loss brought against the Distributorrelated to Xxxxxxxx Lokey’s engagement under, or any matter referred to in, this Agreement (whether or not an Indemnified Party is an actual or potential party thereto), or participate in or otherwise facilitate any such settlement, compromise, consent or termination by or on behalf of any person or entity, unless such settlement, compromise, consent or termination contains a release of the Indemnified Parties reasonably satisfactory in form and substance to Xxxxxxxx Xxxxx. The Company further agrees that neither Xxxxxxxx Xxxxx nor any other Indemnified Party shall have any liability (whether direct or indirect and regardless of the legal theory advanced) to the Company or any person or entity asserting claims on behalf of or in right of the Company arising out of or related to Xxxxxxxx Lokey’s engagement under, or any matter referred to in, this Agreement, except for losses, claims, damages or liabilities incurred by the Company which are finally judicially determined by a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Indemnified Party. The Company shall cause any new company that may be formed by the Company, for any purpose, to agree to all of the obligations in this Section to Xxxxxxxx Xxxxx in accordance with the foregoing indemniteesprovisions. Prior to entering into any agreement or arrangement with respect to, within thirty or effecting, any (30i) days after the summons merger, statutory exchange or other first legal process giving information business combination or proposed sale, exchange, dividend or other distribution of all or a significant portion of its assets, or (ii) significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the nature obligations of the claim shall have been served upon the Distributor, or such other indemnitee, unless the failure to give notice does not prejudice the Trust. Such notification shall be given pursuant to the notice provisions Company set forth in Section 13 belowthis Agreement, the Company will notify Xxxxxxxx Xxxxx in writing thereof (if not previously so notified) and, if requested by Xxxxxxxx Xxxxx, shall arrange in connection therewith alternative means of providing for the obligations of the Company set forth in this Agreement, including the assumption of such obligations by another party, insurance, surety bonds, the creation of an escrow, or other credit support arrangements, in each case in an amount and upon terms and conditions reasonably satisfactory to Xxxxxxxx Xxxxx. The indemnity, reimbursement, and other obligations and agreements of the Company set forth herein (i) shall apply to any services provided by Xxxxxxxx Xxxxx in connection with this engagement prior to the Effective Date and to any modifications of this Agreement, (ii) shall be in addition to any obligation or liability which the Company may otherwise have to any Indemnified Party, and (iii) shall survive the completion of the services described in, and any expiration or termination of the relationship established by, this Agreement. The Company agrees that Xxxxxxxx Xxxxx would be irreparably injured by any breach of any such obligations or agreements, that money damages alone would not be an adequate remedy for any such breach and that, in the event of any such breach, Xxxxxxxx Xxxxx shall be entitled, in addition to any other remedies, to injunctive relief and specific performance.

Indemnification and Standard of Care. A. The Trust shall indemnifyAs a material part of the consideration for the agreement of Xxxxxxxx Xxxxx to furnish its services under this Agreement, defend the Company agrees (i) to indemnify and hold the Distributor harmless Xxxxxxxx Xxxxx and each of its affiliates, and their respective past, present or former membersand future directors, officers, partners, members, employees, representatives agents, representatives, advisors, subcontractors and any person who controls or previously controlled controlling persons (collectively, the Distributor within “Indemnified Parties”), to the meaning of Section 15 of the 1933 Actfullest extent lawful, free and harmless from and against any and all losses, claims, demands, liabilities, damages and expenses (including the reasonable costs of investigating or defending any alleged losses, claims, demands, liabilities, damages or expenses and any reasonable counsel fees incurred liabilities (or actions in connection therewith) (collectively, “Losses”respect thereof), which the Distributor, each of its present and former members, officers, employees joint or representatives or any such controlling person may incur under the 1933 Act, the 1934 Act, any other statute (including state securities laws) or any rule or regulation thereunder, or under common law or otherwiseseveral, arising out of or based upon any untrue statementrelated to Xxxxxxxx Lokey’s engagement under, or alleged untrue statementany matter referred to in, this Agreement, and (ii) to reimburse each Indemnified Party for all expenses (including, without limitation, the fees and expenses of a material fact contained counsel) as they are incurred in the Registration Statement connection with investigating, preparing, pursuing, defending, settling, compromising or any Prospectus, as from time to time amended or supplemented, or otherwise becoming involved in any annual action, suit, dispute, inquiry, investigation or interim report to shareholdersproceeding, pending or in threatened, brought by or against any advertisements person or sales literature prepared by the Trust entity (including, without limitation, any shareholder or its agentsderivative action), or arising out of or based upon related to such engagement or matter. However, the Company shall not be liable under the foregoing indemnification provision for any omissionloss, claim, damage or alleged omissionliability which is finally judicially determined by a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Indemnified Party. If for any reason the foregoing indemnification or reimbursement is unavailable to any Indemnified Party or insufficient fully to indemnify any Indemnified Party or to hold it harmless in respect of any losses, claims, damages, liabilities or expenses referred to state therein in such indemnification or reimbursement provisions, then the Company shall contribute to the amount paid or payable by such Indemnified Party as a material fact required result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to be stated therein or necessary to make reflect the statements therein not misleadingrelative benefits received by the Company, or based upon on the Trust’s failure to comply one Case 17-19899-SLM Doc 166-1 Filed 06/28/17 Entered 06/28/17 12:43:32 Desc Exhibit A - Xxxxxxxx Xxxxx Agreement Page 8 of 10 hand, and Xxxxxxxx Xxxxx, on the other hand, in connection with the terms of matters contemplated by this Agreement or applicable law; providedAgreement. If, however, that the Trust’s obligation allocation provided by the immediately preceding sentence is not permitted by applicable law, then the Company shall contribute to indemnify such amount paid or payable by such Indemnified Party in such proportion as is appropriate to reflect not only such relative benefits, but also the Distributor and any relative fault of the foregoing indemnitees Company (and its affiliates, and their respective directors, employees, agents and other advisors), on the one hand, and such Indemnified Party, on the other hand, in connection therewith, as well as any other relevant equitable considerations. Notwithstanding the foregoing, in no event shall not the Indemnified Parties be required to contribute an aggregate amount in excess of the amount of fees actually received by Xxxxxxxx Xxxxx from the Company pursuant to this Agreement. Relative benefits received by the Company, on the one hand, and Xxxxxxxx Xxxxx, on the other hand, shall be deemed to cover any Losses arising out of any untrue statement or alleged untrue statement or omission or alleged omission made be in the Registration Statement, Prospectus, annual same proportion as (i) the total value paid or interim report, received or any such advertisement contemplated to be paid or sales literature in reliance upon and in conformity with information relating to the Distributor and furnished to the Trust or its counsel received by the Distributor in writing. The Trust’s agreement to indemnify the DistributorCompany, and any of the foregoing indemniteesits security holders, creditors and other affiliates, as the case may be, with respect pursuant to the transaction(s) (whether or not consummated) contemplated by the engagement hereunder, bears to (ii) the fees received by Xxxxxxxx Xxxxx under this Agreement. The Company shall not settle, compromise or consent to the entry of any action judgment in or claim otherwise seek to terminate any pending or threatened action, suit, dispute, inquiry, investigation or proceeding arising out of loss brought by a third party, is expressly conditioned upon the Trust being notified of such action or claim of loss brought against the Distributorrelated to Xxxxxxxx Lokey’s engagement under, or any matter referred to in, this Agreement (whether or not an Indemnified Party is an actual or potential party thereto), or participate in or otherwise facilitate any such settlement, compromise, consent or termination, unless such settlement, compromise, consent or termination contains a release of the Indemnified Parties reasonably satisfactory in form and substance to Xxxxxxxx Xxxxx. The Company further agrees that neither Xxxxxxxx Xxxxx nor any other Indemnified Party shall have any liability (whether direct or indirect and regardless of the legal theory advanced) to the Company or any person or entity asserting claims on behalf of or in right of the Company arising out of or related to Xxxxxxxx Lokey’s engagement under, or any matter referred to in, this Agreement, except for losses, claims, damages or liabilities incurred by the Company which are finally judicially determined by a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Indemnified Party. The Company shall cause any new company that may be formed by the Company, for any purpose, to agree to all of the obligations in this Section to Xxxxxxxx Xxxxx in accordance with the foregoing indemniteesprovisions. Prior to entering into any agreement or arrangement with respect to, within thirty or effecting, any (30i) days after the summons merger, statutory exchange or other first legal process giving information business combination or proposed sale, exchange, dividend or other distribution or liquidation of all or a significant portion of its assets, or (ii) significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the nature obligations of the claim shall have been served upon the Distributor, or such other indemnitee, unless the failure to give notice does not prejudice the Trust. Such notification shall be given pursuant to the notice provisions Company set forth in Section 13 belowthis Agreement, the Company will notify Xxxxxxxx Xxxxx in writing thereof (if not previously so notified) and, if requested by Xxxxxxxx Xxxxx, shall arrange in connection therewith alternative means of providing for the obligations of the Company set forth in this Agreement, including the assumption of such obligations by another party, insurance, surety bonds, the creation of an escrow, or other credit support arrangements, in each case in an amount and upon terms and conditions satisfactory to Xxxxxxxx Xxxxx. The Company agrees that Xxxxxxxx Xxxxx would be irreparably injured by any breach of this Agreement (including, without limitation, the agreement set forth in the immediately preceding sentence), that money damages alone would not be an adequate remedy for any such breach and that, in the event of any such breach, Xxxxxxxx Xxxxx shall be entitled, in addition to any other remedies, to pursue injunctive relief and specific performance. The indemnity, reimbursement, and other obligations and agreements of the Company set forth in this Agreement (i) shall apply to any services provided by Xxxxxxxx Xxxxx in connection with this engagement prior to the Effective Date and to any modifications of this Agreement, (ii) shall be in addition to any obligation or liability which the Company may otherwise have to any Indemnified Party, (iii) shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Company or any Indemnified Party or any person controlling any of them, and (iv) shall survive the completion of the services described in, and any expiration or termination of the relationship established by, this Agreement.

Indemnification and Standard of Care. A. The Trust shall indemnifyAs a material part of the consideration for the agreement of Xxxxxxxx Xxxxx to furnish its services under this Agreement, defend the Company agrees (i) to Xxxxxx Xxxxxxxxx Ascendia Brands, Inc. As of July 3, 2008 indemnify and hold the Distributor harmless Xxxxxxxx Xxxxx and each of its affiliates, and their respective past, present or former membersand future directors, officers, shareholders, partners, members, employees, representatives agents, representatives, advisors, subcontractors and any person who controls or previously controlled controlling persons (collectively, the Distributor within “Indemnified Parties”), to the meaning of Section 15 of the 1933 Actfullest extent lawful, free and harmless from and against any and all losses, claims, demands, liabilities, damages and expenses (including the reasonable costs of investigating or defending any alleged losses, claims, demands, liabilities, damages or expenses and any reasonable counsel fees incurred liabilities (or actions in connection therewith) (collectively, “Losses”respect thereof), which the Distributor, each of its present and former members, officers, employees joint or representatives or any such controlling person may incur under the 1933 Act, the 1934 Act, any other statute (including state securities laws) or any rule or regulation thereunder, or under common law or otherwiseseveral, arising out of or based upon related to this Agreement, Xxxxxxxx Lokey’s engagement under this Agreement, any untrue statementTransaction or proposed Transaction, or alleged untrue statementany actions taken or omitted to be taken by an Indemnified Party or the Company in connection with this Agreement and (ii) to reimburse each Indemnified Party for all expenses (including without limitation the fees and expenses of counsel) as they are incurred in connection with investigating, of a material fact contained in the Registration Statement preparing, pursuing, defending, settling or compromising any Prospectusaction, as from time to time amended suit, dispute, inquiry, investigation or supplementedproceeding, pending or in threatened, brought by or against any annual person (including without limitation any shareholder or interim report to shareholdersderivative action), or in any advertisements or sales literature prepared by the Trust or its agents, or arising out of or based upon any omissionrelating to this Agreement, or alleged omissionsuch engagement, Transaction or actions. However, the Company shall not be liable under the foregoing indemnity and reimbursement agreement for any loss, claim, damage or liability, the preponderance of which is finally judicially determined by a court of competent jurisdiction to state therein have resulted from the willful misconduct or gross negligence of such Indemnified Party. If for any reason the foregoing indemnification or reimbursement is unavailable to any Indemnified Party or insufficient fully to indemnify any such party or to hold it harmless in respect of any losses, claims, damages, liabilities or expenses referred to in such indemnification or reimbursement provisions, then the Company shall contribute to the amount paid or payable by the Indemnified Party as a material fact required result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to be stated therein or necessary to make reflect the statements therein not misleadingrelative benefits received by the Company, or based upon on the Trust’s failure to comply one hand, and Xxxxxxxx Xxxxx, on the other hand, in connection with the terms of matters contemplated by this Agreement or applicable law; providedAgreement. If, however, that the Trust’s obligation allocation provided by the immediately preceding sentence is not permitted by applicable law, then the Company shall contribute to indemnify such amount paid or payable by any Indemnified Party in such proportion as is appropriate to reflect not only such relative benefits, but also the Distributor and any relative fault of the foregoing indemnitees Company, on the one hand, and such Indemnified Party, on the other hand, in connection therewith, as well as any other relevant equitable considerations. Notwithstanding the foregoing, in no event shall not the Indemnified Parties be required to contribute an aggregate amount in excess of the amount of fees actually received by Xxxxxxxx Xxxxx from the Company pursuant to this Agreement. Relative benefits to the Company, on the one hand, and Xxxxxxxx Xxxxx, on the other hand, shall be deemed to cover any Losses arising out of any untrue statement or alleged untrue statement or omission or alleged omission made be in the Registration Statement, Prospectus, annual same proportion as (i) the total value paid or interim report, received or any such advertisement contemplated to be paid or sales literature in reliance upon and in conformity with information relating to the Distributor and furnished to the Trust or its counsel received by the Distributor in writing. The Trust’s agreement to indemnify the DistributorCompany, and any of the foregoing indemniteesits security holders, creditors, and other affiliates, as the case may be, with pursuant to the transaction(s) (whether or not consummated) contemplated by the engagement hereunder, bears to (ii) the fees received by Xxxxxxxx Xxxxx under the Agreement. The Company shall not settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action, suit, dispute, inquiry, investigation or proceeding in respect of which indemnification may be sought hereunder (whether or not an Indemnified Party is an actual or potential party thereto), unless such settlement, compromise, consent or termination contains a release of the Indemnified Parties reasonably satisfactory in form and substance to Xxxxxxxx Xxxxx. The Company further agrees that neither Xxxxxxxx Xxxxx nor any action other Indemnified Party shall have any liability (whether direct or claim indirect and regardless of loss brought by a third partythe legal theory advanced) to the Company or any person or entity asserting claims on behalf of or in right of the Company related to or arising out of this Agreement, is expressly conditioned upon the Trust being notified of such action Xxxxxxxx Lokey’s engagement under this Agreement, any Transaction or claim of loss brought against the Distributorproposed Transaction, or any actions taken or omitted to be taken by an Indemnified Party or the Company in connection with this Agreement, except for losses, claims, damages or liabilities incurred by the Company which are finally judicially determined by a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such Indemnified Party. The indemnity, reimbursement, and other obligations and agreements of the Company set forth herein (i) shall apply to Xxxxxx Xxxxxxxxx Ascendia Brands, Inc. As of July 3, 2008 any services provided by Xxxxxxxx Xxxxx in connection with this engagement prior to the date hereof and to any modifications of this Agreement, (ii) shall be in addition to any obligation or liability which the Company may otherwise have to any Indemnified Party, (iii) shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Company or any Indemnified Party or any person controlling any of them, and (iv) shall survive the completion of the services described in, and any expiration or termination of the relationship established by, this Agreement. The Company shall cause any new company that may be formed by the Company or the Company’s subsidiaries, for any purpose, to agree to all of the obligations in this Section to Xxxxxxxx Xxxxx in accordance with the foregoing indemniteesprovisions. Prior to entering into any agreement or arrangement with respect to, within thirty or effecting, any (30i) days after the summons merger, statutory exchange or other first legal process giving information business combination or proposed sale, exchange, dividend or other distribution or liquidation of all or a significant portion of its assets, or (ii) significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the nature obligations of the claim shall have been served upon the Distributor, or such other indemnitee, unless the failure to give notice does not prejudice the Trust. Such notification shall be given pursuant to the notice provisions Company set forth in Section 13 belowthis Agreement, the Company will notify Xxxxxxxx Xxxxx in writing thereof (if not previously so notified) and, if requested by Xxxxxxxx Xxxxx, shall arrange in connection therewith alternative means of providing for the obligations of the Company set forth in this Agreement, including the assumption of such obligations by another party, insurance, surety bonds, the creation of an escrow, or other credit support arrangements, in each case in an amount and upon terms and conditions satisfactory to Xxxxxxxx Xxxxx. The Company agrees that Xxxxxxxx Xxxxx would be irreparably injured by any breach of this Agreement (including the agreement set forth in the immediately preceding sentence), that money damages alone would not be an adequate remedy for any such breach and that, in the event of any such breach, Xxxxxxxx Xxxxx shall be entitled, in addition to any other remedies, to pursue injunctive relief and specific performance.