Common use of INDEMNIFICATION BY ADVISER AND DISTRIBUTOR Clause in Contracts

INDEMNIFICATION BY ADVISER AND DISTRIBUTOR. (a) Adviser and Distributor agrees to indemnify and hold harmless Company and each of its directors, officers, employees and agents and each person, if any, who controls Company within the meaning of Section 15 of the 1933 Act ("Indemnified Party" and collectively, the "Indemnified Parties" for purposes of this Section 9.2) against any and all Losses to which the Indemnified Parties may become subject under any statute, regulation, at common law or otherwise, insofar as such Losses: (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or sales literature of the Fund (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this Section 9.2(a) shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with written information furnished to the Fund, Adviser or Distributor by or on behalf of Company for use in the registration statement or prospectus for the Fund or in sales literature (or any amendment or supplement) or otherwise for use in connection with the sale of the Contracts or Fund shares; or (ii) arise out of, or as a result of, statements or representations or wrongful conduct of Adviser or Distributor or persons under its control, with respect to the sale or distribution of Fund shares; or (iii) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, or sales literature covering the Contracts, 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 written information furnished to Company by or on behalf of Adviser or Distributor; or (iv) arise out of, or as a result of, any failure by Adviser or Distributor or persons under its control to provide the services and furnish the materials contemplated under the terms of this Agreement; or (v) arise out of or result from any material breach of any representation or warranty made by Adviser or Distributor or persons under its control in this Agreement or arise out of or result from any other material breach of this Agreement by Adviser or Distributor or persons under its control; as limited by and in accordance with the provisions of Sections 9.2(b) and 9.2(c) hereof. This indemnification provision is in addition to any liability which Adviser and Distributor may otherwise have. (b) Adviser and Distributor shall not be liable under this indemnification provision with respect to any Losses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Party's duties or by reason of such Indemnified Party's reckless disregard of obligations and duties under this Agreement or to Company. (c) Adviser and Distributor shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Adviser and Distribution in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Adviser and Distributor of any such claim shall not relieve Adviser and Distributor from any liability which it may have to the Indemnified Party otherwise than on account of this indemnification provision. In case any such action is brought against any Indemnified Party, and it notified the Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to participate therein and, to the extent that it may wish, assume the defense thereof, with counsel satisfactory to such Indemnified Party. After notice from the Indemnifying Party of its intention to assume the defense of an action, the Indemnified Party shall bear the expenses of any additional counsel obtained by it, and the Indemnifying Party shall not be liable to such Indemnified Party under this Section for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Party may not settle any action without the written consent of the Indemnifying Party. The Indemnifying Party may not settle any action without the written consent of the Indemnified Party unless such settlement completely and finally releases the Indemnified Party from any and all liability. In either event, consent shall not be unreasonably withheld. (d) The Indemnified Parties will promptly notify Adviser and Distributor of the commencement of any litigation or proceedings against the Indemnified Parties in connection with the issuance or sale of the Contracts or the operation of the Account.

INDEMNIFICATION BY ADVISER AND DISTRIBUTOR. (a) Distributor and Adviser and Distributor agrees agree to indemnify and hold harmless the Company and each of its directors, officers, employees and agents and each person, if any, who controls the Company within the meaning of Section 15 such terms under the federal securities laws and any director, officer, employee or agent of the 1933 Act foregoing ("Indemnified Party" and collectively, the "Indemnified Parties" for purposes of this Section 9.28.2) against any and all Losses losses, claims, expenses, damages, liabilities (including amounts paid in settlement with the written consent of Distributor and Adviser) or actions in respect thereof (including reasonable legal and other expenses) to which the Indemnified Parties may become subject under any statute, regulation, at common law or otherwise, insofar as such Losseslosses, claims, damages, liabilities or expenses (or actions in respect thereof) or settlements are related to the sale, acquisition, or holding of the Fund shares or the Contracts and: (i1) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement statement, prospectus or prospectus SAI for the Fund or sales literature or other promotional material of the Fund (or any amendment or supplement to any of the foregoing), or arise out of or are 12 based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make such statements not misleading in light of the statements therein not misleading, circumstances in which they were made; provided that this Section 9.2(a) shall agreement to indemnify will not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with written information furnished to the FundDistributor, Adviser or Distributor Fund by or on behalf of the Company for use in the registration statement statement, prospectus or prospectus SAI for the Fund or in sales literature of the Fund (or any amendment or supplementsupplement thereto) or otherwise for use in connection with the sale of the Contracts or Fund shares; or (ii2) arise out of, of or as a result of, of statements or representations (other than statements or representations contained in the Contracts or in the Contract or Fund registration statements, prospectuses or statements of additional information or sales literature or other promotional material for the Contracts, or any amendment or supplement to the foregoing, not supplied by the Adviser, Distributor or the Fund or persons under the control of Adviser, Distributor or the Fund respectively) or wrongful conduct of Adviser Adviser, Distributor or Distributor the Fund or persons under its controlthe control of Adviser, Distributor or the Fund respectively, with respect to the sale or distribution of the Contracts or Fund shares; or (iii3) arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, SAI or sales literature or other promotional material covering the Contracts, Contracts (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 such statement or statements not misleading in light of the statements therein not misleadingcircumstances in which they were made, if such statement or omission was made in reliance upon written and in conformity with information furnished to the Company by or on behalf of Distributor, Adviser or the Fund or persons under the control of Distributor, Adviser or the Fund; or (iv4) arise out of, or as a result of, of any failure by Distributor, Adviser or Distributor or persons under its control the Fund to provide the services and furnish the materials contemplated under the terms of this Agreement; or (v5) arise out of or result from any material breach of any representation or and/or warranty made by Distributor, Adviser or Distributor or persons under its control in this Agreement Agreement, or arise out of or result from any other material breach of this Agreement by Adviser or Distributor or persons under its control; as limited by and Adviser (including a failure, whether intentional or in accordance good faith or otherwise, to comply with the provisions requirements of Subchapter M of the Code specified in Article III, Section 3.2 of this Agreement and the diversification requirements specified in Article HI, Section 3.3 of this Agreement; except to the extent provided in Sections 9.2(b8.2(b) and 9.2(c) 8.3 hereof. This indemnification provision is will be in addition to any liability which that Distributor or Adviser and otherwise may have. In no event shall Distributor may otherwise haveor Adviser be liable for any consequential, incidental, special or indirect damages resulting to the Company, the Contracts or the Accounts hereunder. (b) Adviser and Distributor shall not No party will be liable entitled to indemnification under this indemnification provision with respect Section 8.2(a) if such loss, claim, damage, liability or action is due to any Losses to which an Indemnified Party would otherwise be subject by reason of such Indemnified Party's the willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified Partyparty's duties under this Agreement, or by reason of such Indemnified Partyparty's reckless disregard of or its obligations and or duties under this Agreement or to CompanyAgreement. (c) Adviser and Distributor shall not be liable under this indemnification provision with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified Adviser and Distribution in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Indemnified Party (or after such Indemnified Party shall have received notice of such service on any designated agent), but failure to notify Adviser and Distributor of any such claim shall not relieve Adviser and Distributor from any liability which it may have to the Indemnified Party otherwise than on account of this indemnification provision. In case any such action is brought against any Indemnified Party, and it notified the Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to participate therein and, to the extent that it may wish, assume the defense thereof, with counsel satisfactory to such Indemnified Party. After notice from the Indemnifying Party of its intention to assume the defense of an action, the Indemnified Party shall bear the expenses of any additional counsel obtained by it, and the Indemnifying Party shall not be liable to such Indemnified Party under this Section for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Party may not settle any action without the written consent of the Indemnifying Party. The Indemnifying Party may not settle any action without the written consent of the Indemnified Party unless such settlement completely and finally releases the Indemnified Party from any and all liability. In either event, consent shall not be unreasonably withheld. (d) The Indemnified Parties will promptly notify Adviser and Distributor of the commencement of any litigation litigation, proceedings, complaints or proceedings actions by regulatory authorities against the Indemnified Parties them in connection with the issuance issuance, holding or sale of the Contracts or the operation of the Account.