Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter against any loss, damage or expense (including the reasonable costs of investigation) reasonably incurred by any of them in connection with the matters to which this Agreement relates, except a loss resulting from willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Underwriter's duties or from the reckless disregard by any of such persons of Underwriter's obligations and duties under this Agreement, for all of which exceptions Underwriter shall be liable to the Trust. The Trust will advance attorneys' fees or other expenses incurred by any such person in defending a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnification. In order that the indemnification provisions contained in this Paragraph 9 shall apply, it is understood that if in any case the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that Underwriter will use all reasonable care to identify and notify the Trust promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulations.
Appears in 5 contracts
Samples: Underwriting Agreement (Markman Multifund Trust), Underwriting Agreement (Navellier Performance Funds), Underwriting Agreement (Navellier Millennium Funds)
Indemnification of Underwriter. A. The Trust agrees to will indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter, and affiliates of Underwriter (the "Indemnified Parties") from and against any lossand all losses, damage damages, claims, suits, actions, demands, expenses and liabilities, including reasonable legal fees, of any and every nature which the Indemnified Parties may sustain or expense (including incur or which may be asserted against the reasonable costs of investigation) reasonably incurred Indemnified Parties by any of them person in connection with the matters or arising out of any services rendered under or payments made pursuant to this Agreement or any other matter to which this Agreement relates, except a loss resulting from willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Underwriter's duties or from the reckless disregard by any of such persons of Underwriter's obligations and duties under this Agreement, for all of which exceptions Underwriter shall be liable to the Trust. The Trust will advance attorneys' fees or other expenses incurred by any such person in defending a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnification. In order that the indemnification provisions contained in this Paragraph 9 shall apply, it is understood that if in any case the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that Underwriter will use all reasonable care to identify and notify the Trust promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter the Indemnified Parties shall be entitled to receive receive, at their own expense, and act upon advice of counsel (who may be counsel for the Trust or its their own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice.
B. The Trust shall be entitled to participate at its own expense or, provided if it so elects, to assume the defense of any suit brought to enforce any claims subject to this indemnity provision. If the Trust elects to assume the defense of any such claim, the defense shall be conducted by counsel chosen by it and reasonably satisfactory to the indemnified party, whose approval shall not be unreasonably withheld, as long as the Trust is conducting a good faith and diligent defense. In the event that the Trust elects to assume the defense of any suit and retain counsel, the indemnified party shall bear the fees and expenses of any additional counsel retained by it. If the Trust does not elect to assume the defense of a suit, or if such action good faith and diligent defense is not being or ceases to be conducted by the Trust, it will reimburse the indemnified party for the reasonable fees and expenses of any counsel retained by the indemnified party. The indemnity and defense provisions set forth herein shall indefinitely survive the termination of this Agreement.
C. Underwriter shall maintain a fidelity bond covering larceny and embezzlement and an insurance policy with respect to directors and officers errors and omissions coverage in violation amounts that are appropriate in light of applicable federal its duties and responsibilities hereunder. Upon the request of the Trust, Underwriter shall provide evidence that coverage is in place. Underwriter shall notify the Trust should its insurance coverage with respect to professional liability or state laws errors and omissions coverage be canceled. Such notification shall include the date of cancellation and the reasons therefore. Underwriter shall notify the Trust of any material claims against it with respect to services performed under this Agreement, whether or regulationsnot they may be covered by insurance, and shall notify the Trust should the total outstanding claims made by Underwriter under its insurance coverage materially impair, or threaten to materially impair, the adequacy of its coverage.
D. The foregoing rights shall be in addition to any other rights to which the Indemnified Parties may be entitled as a matter of law.
Appears in 1 contract
Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter (“Underwriter Indemnitees”) against any loss, damage or expense (including the reasonable costs of investigationinvestigating or defending any claim, action, suit or proceeding and any reasonable counsel fees) reasonably incurred by Underwriter Indemnitees in connection with any claim or in connection with any action, suit or proceeding (“Claims”) to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon (a) the Underwriter acting as distributor of the Trust and each Series; (b) the Underwriter or any subsidiary or affiliate of the Underwriter acting as a member of the National Securities Clearing Corporation (or any successor or other entity performing similar functions) (“NSCC”) on behalf of the Trust; (c) the Underwriter or any subsidiary or affiliate of the Underwriter entering into selling agreements, dealer agreements, participation agreements, NSCC Trust SERV or Networking agreements or similar agreements (collectively, “Dealer Agreements”) with financial intermediaries on behalf of the Trust; (d) any of the following: (i) any untrue statement, or alleged untrue statement, of a material fact contained in connection with any Registration Statement, (ii) any omission, or alleged omission, to state a material fact required to be stated in any Registration Statement or necessary to make the matters statements therein not misleading, or (iii) any untrue statement, or alleged untrue statement, of a material fact in any Trust-related advertisement or sales literature, or any omission, or alleged omission, to which state a material fact required to be stated therein to make the statements therein not misleading, in either case notwithstanding the exercise of reasonable care in the preparation or review thereof by the Underwriter; (e) the material breach by the Trust of any provision of this Agreement relatesAgreement; provided, except a loss resulting however, that the Trust’s agreement to indemnify the Underwriter Indemnitees pursuant to this Paragraph 9 shall not be construed to cover any Claims (A) pursuant to subsection (d) above to the extent such untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, by the Underwriter for use in the Registration Statement or in corresponding statements made in the prospectus, advertisement or sales literature; (B) arising out of or based upon the willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Underwriter's duties ’s obligations under this Agreement or from the reckless disregard by any of such persons of Underwriter's ’s obligations and duties under this Agreement, or (C) arising out of or based upon the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder, for all of which exceptions Underwriter shall be liable to the Trust. In the event of a Claim for which the Underwriter Indemnitees may be entitled to indemnification hereunder, the Underwriter shall fully and promptly advise the Trust in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Trust’s indemnification obligations under this Agreement except to the extent that the Trust is materially prejudiced thereby. The Trust will advance attorneys' be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Trust and approved by the Underwriter, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Trust’s part, the Underwriter shall have the right to participate in the defense. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing so approved by the Underwriter, the Underwriter Indemnitees in such suit shall bear the fees or other and expenses incurred of any additional counsel retained by any of them, but in any case where the Trust does not elect to assume the defense of any such person suit or in defending case the Underwriter reasonably withholds approval of counsel chosen by the Trust, the Trust will reimburse the Underwriter Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnificationClaim covered under this Paragraph 9. In order that the The Trust’s indemnification provisions agreement contained in this Paragraph 9 shall apply, it is understood that if remain operative and in full force and effect regardless of any case investigation made by or on behalf of the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in questionIndemnitees, and it is further understood that Underwriter will use all reasonable care to identify and notify shall survive the Trust promptly concerning delivery of any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulationsShares.
Appears in 1 contract
Indemnification of Underwriter. Underwriter shall exercise reasonable care and act in good faith in the performance of its duties under this Agreement. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter against any loss, damage or expense (including the reasonable costs of investigation) reasonably incurred by any of them in connection with the matters to which this Agreement relates, except a loss resulting from any refusal or failure to comply with the terms of this Agreement or by reason of willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, gross negligence on the part of any of such persons in the performance of Underwriter's duties or from the reckless disregard by any of such persons of Underwriter's obligations and duties under this Agreement, for all of which exceptions Underwriter shall be liable to the Trust. The Trust will advance attorneys' fees or other expenses incurred by any such person in defending a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnification. In order that the indemnification provisions contained in this Paragraph 9 shall apply, it is understood that if in any case the Trust Any person employed by Underwriter who may also be asked to indemnify Underwriter or any other person become an officer or hold Underwriter or any other person harmless, employee of the Trust shall be fully deemed, when acting within the scope of his employment by the Trust, to be acting in such employment solely for the Trust and promptly advised not as an employee or agent of Underwriter. In the event of a mechanical breakdown or failure of communication or power supplies beyond its control, Underwriter shall take all pertinent facts concerning the situation in question, and it is further understood reasonable steps to minimize service interruptions for any period that such interruption continues beyond Underwriter's control. Underwriter will make very reasonable effort to restore any lost or damaged data and correct any errors resulting from such a breakdown at the expense of Underwriter. Underwriter agrees that it shall, at all times, have reasonable contingency plans with appropriate parties, making reasonable provision for emergency use all reasonable care of electrical data processing equipment to identify and notify the extent appropriate equipment is available. Representatives of the Trust promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter Manager shall be entitled to receive inspect Underwriter's premises and act operating capabilities at any time during regular business hours of Underwriter, upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant reasonable notice to such advice, provided that such action is not in violation of applicable federal or state laws or regulationsUnderwriter.
Appears in 1 contract
Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter against any loss, damage or expense (including the reasonable costs of investigation) reasonably incurred by any of them in connection with the matters to which this Agreement relates, except a loss resulting from willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Underwriter's duties or from the reckless disregard by any of such persons of Underwriter's obligations and duties under this Agreement, for all of which exceptions Underwriter shall be liable to the Trust. The Trust will advance attorneys' fees or other expenses incurred by any such person in defending a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnification. In order that the indemnification provisions contained in this Paragraph 9 shall apply, it is understood that if in any case the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that Underwriter will use all reasonable care to identify and notify the Trust promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulations. The Trust shall indemnify and hold harmless Underwriter, its directors, officers, employees, shareholders, agents, control persons and affiliates of any thereof from and against any and all losses, damages, claims, suits, actions, demands, expenses and liabilities (whether with or without basis in fact or law), including legal fees and expenses and investigation expenses, of any and every nature which Underwriter may sustain or incur or which may be asserted against Underwriter by any person (including reasonable counsel fees) that Underwriter may incur or be required to pay hereafter, in connection with any action, suit or other proceeding, whether civil or criminal, before any court, administrative or legislative body, in which Underwriter may be involved as a party or otherwise or with which Underwriter may be threatened, by reason of the distribution-related activities of the Trust, for the period prior to Underwriter's assumption of its responsibilities pursuant to this Agreement. Underwriter shall notify promptly the Trust of the commencement of any complaint, claim, litigation or proceedings against Underwriter, any of its directors, officers, employees or others in connection with any shareholder information for the period prior to Underwriter's assumption of its responsibilities pursuant to this Agreement. Underwriter shall provide to the Trust a total of any and all idemnification costs that Underwriter claims pursuant to this Agreement for the Trust's approval, which approval shall not be unreasonably withheld. In no event shall Underwriter be liable to the Trust or any third party for any damages, even if advised of the possibility of such damages, in connection with any distribution-related activity or regulatory requirement for the period prior to Underwriter's assumption of its responsibilities pursuant to this Agreement.
Appears in 1 contract
Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter against any loss, damage or expense (including the reasonable costs of investigation) reasonably incurred by any of them in connection with the matters to which this Agreement relates, except a loss resulting from willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, gross negligence on the part of any of such persons in the performance of Underwriter's duties or from the reckless disregard by any of such persons of Underwriter's obligations and duties under this Agreement, for all of which exceptions Underwriter shall be liable to the Trust. The Trust will advance attorneys' fees or other expenses incurred by any such person in defending a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnification. In order that the indemnification provisions contained in this Paragraph 9 shall apply, it is understood that if in any case the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that Underwriter will use all reasonable care to identify and notify the Trust promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulations.
Appears in 1 contract
Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter ("Underwriter Indemnitees") against any loss, damage or expense (including the reasonable costs of investigationinvestigating or defending any claim, action, suit or proceeding and any reasonable counsel fees) reasonably incurred by Underwriter Indemnitees in connection with any claim or in connection with any action, suit or proceeding ("Claims") to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon: (a) the Underwriter acting as distributor of the Trust and each Series; (b) the Underwriter or any subsidiary or affiliate of the Underwriter acting as a member of the National Securities Clearing Corporation (or any successor or other entity performing similar functions) (“NSCC”) on behalf of the Trust; (c) the Underwriter or any subsidiary or affiliate of the Underwriter entering into selling agreements, dealer agreements, participation agreements, NSCC Trust SERV or Networking agreements or similar agreements (collectively, “Dealer Agreements”) with financial intermediaries on behalf of the Trust; (d) any of the following: (i) any untrue statement, or alleged untrue statement, of a material fact contained in connection with any Registration Statement, (ii) any omission, or alleged omission, to state a material fact required to be stated in any Registration Statement or necessary to make the matters statements therein not misleading, or (iii) any untrue statement, or alleged untrue statement, of a material fact in any Trust-related advertisement or sales literature, or any omission, or alleged omission, to which state a material fact required to be stated therein to make the statements therein not misleading, in either case notwithstanding the exercise of reasonable care in the preparation or review thereof by the Underwriter; (e) the material breach by the Trust of any provision of this Agreement relatesAgreement; provided, except a loss resulting however, that the Trust's agreement to indemnify the Underwriter Indemnitees pursuant to this Paragraph 9 shall not be construed to cover any Claims (A) pursuant to subsection (d) above to the extent such untrue statement, alleged untrue statement, omission, or alleged omission, was caused by Underwriter Indemnitees or was furnished in writing, or omitted from the relevant writing furnished, as the case may be, to the Trust by the Underwriter for use in the Registration Statement or in corresponding statements made in the prospectus, advertisement or sales literature; (B) arising out of or based upon the willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Underwriter's ’s duties or from the reckless disregard by any of such persons of Underwriter's ’s obligations and duties under this Agreement; (C) arising out of or based upon the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder; or (D) which were caused by or resulted from the acts or omissions of Underwriter Indemnitee(s) for all of which exceptions Underwriter shall be liable to the Trust. Such indemnification shall be strictly limited to actual out-of-pocket losses or damages actually paid or incurred by the indemnitee and shall not include any losses or damages or amounts which are paid for or to the indemnitee by insurance or some other source to reimburse or satisfy the claims or expenses of the indemnitee. The purpose and intent of this provision is to avoid the application of the so-called “collateral source rule” so that the indemnitee is only indemnified for actual net, out-of-pocket losses or damages and does not receive a “double recovery” from indemnitor and insurance or some other source. In the event of a Claim for which the Underwriter Indemnitees may be entitled to indemnification hereunder, the Underwriter shall fully and promptly advise the Trust in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Trust’s indemnification obligations under this Agreement except to the extent that the Trust is materially prejudiced thereby. The Trust will advance attorneys' fees or other expenses incurred by may, with the written consent of Underwriter Indemnitees, be entitled to assume the defense of any suit brought to enforce any such person Claim against Underwriter Indemnitees. However, the Underwriter Indemnitees shall have the right to defend themselves with legal counsel of their own choosing against any such claim and Trust shall indemnify Underwriter Indemnitees for all such reasonable fees and costs in defending addition to indemnity for damages awarded or paid to Claimants to the extent related to a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnificationClaim covered under this Paragraph 9. In order that the The Trust’s indemnification provisions agreement contained in this Paragraph 9 shall apply, it is understood that if remain operative and in full force and effect regardless of any case investigation made by or on behalf of the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in questionIndemnitees, and it is further understood that Underwriter will use all reasonable care to identify and notify shall survive the Trust promptly concerning delivery of any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulationsShares.
Appears in 1 contract
Samples: Underwriting Agreement (Navellier Performance Funds)
Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter (“Underwriter Indemnitees”) against any loss, damage or expense (including the reasonable costs of investigationinvestigating or defending any claim, action, suite or proceeding and any reasonable counsel fees) reasonably incurred by Underwriter Indemnitees in connection with any claim or in connection with any action, suit or proceeding (“Claims”) to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon : (a) the Underwriter acting as distributor of the Trust and each Series; (b) the Underwriter or any subsidiary or affiliate of the Underwriter acting as a member of the National Securities Clearing Corporation (or any successor or other entity performing similar functions) (“NSCC”) on behalf of the Trust; (c) the Underwriter or any subsidiary or affiliate of the Underwriter entering into selling agreements, dealer agreements, participation agreements, NSCC Trust SERV or Networking agreements or similar agreements (collectively, “Dealer Agreements”) with financial intermediaries on behalf of the Trust; (d) any of the following: (i) any untrue statement, or alleged untrue statement, of a material fact contained in connection with any Registration Statement, (ii) any omission, or alleged omission, to state a material fact required to be stated in any Registration Statement or necessary to make the matters statements therein not misleading, or (iii) any untrue statement, or alleged untrue statement, of a material fact in any Trust-related advertisement or sales literature, or any omission, or alleged omission, to which state a material fact required to be stated therein to make the statements therein not misleading, in either case notwithstanding the exercise of reasonable care in the preparation or review thereof by the Underwriter; (e) the material breach by the Trust of any provision of this Agreement relatesAgreement; provided, except a loss resulting however, that the Trust’s agreement to indemnify the Underwriter Indemnitees pursuant to this Paragraph 9 shall not be construed to cover any Claims (A) pursuant to subsection (d) above to the extent such untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, to the Trust by the Underwriter for use in the Registration Statement or in corresponding statements made in the prospectus, advertisement or sales literature; (B) arising out of or based upon the willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Underwriter's ’s duties or from the reckless disregard by any of such persons of Underwriter's ’s obligations and duties under this Agreement, or (C) arising out of or based upon the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder, for all of which exceptions Underwriter shall be liable to the Trust. In the event of a Claim for which the Underwriter Indemnitees may be entitled to indemnification hereunder, the Underwriter shall fully and promptly advise the Trust in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Trust’s indemnification obligations under this Agreement except to the extent that the Trust is materially prejudiced thereby. The Trust will advance attorneys' be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Trust and approved by the Underwriter, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Trust’s part, the Underwriter shall have the right to participate in the defense. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing so approved by the Underwriter, the Underwriter Indemnitees in such suit shall bear the fees or other and expenses incurred of any additional counsel retained by any of them, but in any case where the Trust does not elect to assume the defense of any such person suit or in defending case the Underwriter reasonably withholds approval of counsel chosen by the Trust, the Trust will reimburse the Underwriter Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnificationClaim covered under this Paragraph 9. In order that the The Trust’s indemnification provisions agreement contained in this Paragraph 9 shall apply, it is understood that if remain operative and in full force and effect regardless of any case investigation made by or on behalf of the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in questionIndemnitees, and it is further understood that Underwriter will use all reasonable care to identify and notify shall survive the Trust promptly concerning delivery of any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consentShares. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulations.
Appears in 1 contract
Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter (“Underwriter Indemnitees”) against any loss, damage or expense (including the reasonable costs of investigationinvestigating or defending any claim, action, suite or proceeding and any reasonable counsel fees) reasonably incurred by Underwriter Indemnitees in connection with any claim or in connection with any action, suit or proceeding (“Claims”) to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon: (a) the Underwriter acting as distributor of the Trust and each Series; (b) the Underwriter or any subsidiary or affiliate of the Underwriter acting as a member of the National Securities Clearing Corporation (or any successor or other entity performing similar functions) (“NSCC”) on behalf of the Trust; (c) the Underwriter or any subsidiary or affiliate of the Underwriter entering into selling agreements, dealer agreements, participation agreements, NSCC Trust SERV or Networking agreements or similar agreements (collectively, “Dealer Agreements”) with financial intermediaries on behalf of the Trust; (d) any of the following: (i) any untrue statement, or alleged untrue statement, of a material fact contained in connection with any Registration Statement, (ii) any omission, or alleged omission, to state a material fact required to be stated in any Registration Statement or necessary to make the matters statements therein not misleading, or (iii) any untrue statement, or alleged untrue statement, of a material fact in any Trust-related advertisement or sales literature, or any omission, or alleged omission, to which state a material fact required to be stated therein to make the statements therein not misleading, in either case notwithstanding the exercise of reasonable care in the preparation or review thereof by the Underwriter; (e) the material breach by the Trust of any provision of this Agreement relatesAgreement; provided, except a loss resulting however, that the Trust’s agreement to indemnify the Underwriter Indemnitees pursuant to this Paragraph 9 shall not be construed to cover any Claims (A) pursuant to subsection (d) above to the extent such untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, to the Trust by the Underwriter for use in the Registration Statement or in corresponding statements made in the prospectus, advertisement or sales literature; (B) arising out of or based upon the willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Underwriter's ’s duties or from the reckless disregard by any of such persons of Underwriter's ’s obligations and duties under this Agreement, or (C) arising out of or based upon the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder, for all of which exceptions Underwriter shall be liable to the Trust. In the event of a Claim for which the Underwriter Indemnitees may be entitled to indemnification hereunder, the Underwriter shall fully and promptly advise the Trust in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Trust’s indemnification obligations under this Agreement except to the extent that the Trust is materially prejudiced thereby. The Trust will advance attorneys' be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Trust and approved by the Underwriter, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Trust’s part, the Underwriter shall have the right to participate in the defense. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing so approved by the Underwriter, the Underwriter Indemnitees in such suit shall bear the fees or other and expenses incurred of any additional counsel retained by any of them, but in any case where the Trust does not elect to assume the defense of any such person suit or in defending case the Underwriter reasonably withholds approval of counsel chosen by the Trust, the Trust will reimburse the Underwriter Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnificationClaim covered under this Paragraph 9. In order that the The Trust’s indemnification provisions agreement contained in this Paragraph 9 shall apply, it is understood that if remain operative and in full force and effect regardless of any case investigation made by or on behalf of the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in questionIndemnitees, and it is further understood that Underwriter will use all reasonable care to identify and notify shall survive the Trust promptly concerning delivery of any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consentShares. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulations.
Appears in 1 contract
Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter against any loss, damage or expense (including the reasonable costs of investigation) reasonably incurred by any of them in connection with the matters any claim or in connection with any action, suit or proceeding to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon any untrue statement or alleged untrue statement of a material fact, or the omission or alleged omission to state a material fact necessary to make the statements not misleading, on the part of the Trust or any agent or employee of the Trust or any other person for whose act the Trust is responsible, unless such statement or omission was made in reliance upon written information furnished by the Underwriter to the Trust or the Adviser; provided, however, that this Agreement relatesindemnity agreement shall not inure to the benefit or any such person unless a court of competent jurisdiction shall determine, except in a loss resulting from final decision on the merits, that the person to be indemnified was not liable by reasons of willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons gross negligence in the performance of Underwriter's his or its duties or from the by reason of his or its reckless disregard by any of obligations under this Agreement ("disabling conduct") or, in the absence of such persons a decision, a reasonable determination, based upon a review of Underwriter's obligations and duties under this Agreementthe facts, for all that the indemnified person was not liable by reason of which exceptions Underwriter shall be liable disabling conduct is made by (i) a vote of a majority of a quorum of the Trustees of the Trust who are neither "interested persons" of the Trust as defined in the Act or parties to the Trust. The Trust will advance attorneys' fees or other expenses incurred by any such person in defending a proceeding, upon the undertaking by or on behalf of such person (ii) an independent legal counsel to repay the advance if it is ultimately determined that such person is not entitled to indemnification. In order that the indemnification provisions contained in this Paragraph 9 shall apply, it is understood that if in any case the Trust in a written opinion. Any person employed by Underwriter who may also be asked to indemnify Underwriter or any other person become an officer or hold Underwriter or any other person harmless, employee of the Trust shall be fully and promptly advised deemed, when acting within the scope of all pertinent facts concerning his employment by the situation Trust, to be acting in question, and it is further understood that Underwriter will use all reasonable care to identify and notify such employment solely for the Trust promptly concerning any situation which presents and not as an employee or appears likely to present the probability agent of such a claim for indemnification against the TrustUnderwriter. The Trust shall have the option to defend Underwriter and be notified promptly of any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal action, suit or other expenses for which it shall seek indemnification under this Paragraph 9proceeding. Underwriter shall in no case confess any claim or make any compromise in any case in which the The Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive assume the defense of any such action, suit or proceeding and act upon advice retain counsel of counsel good standing approved by the person or persons indemnified hereunder (who may which approval shall not be counsel for withheld unreasonably). If the Trust elects to assume the defense of such matter through such counsel, the defendant or its own counsel) defendants in such suit shall bear the fees and expenses of any additional counsel retained by them. If the Trust does not elect to assume the defense of such matter, or counsel chosen by the Trust is not approved, then the defense shall be without liability for any action reasonably taken or thing reasonably done pursuant to undertaken by counsel chosen by the defendants, and the fees and expenses of such advice, provided that such action is not counsel shall be reimbursed in violation accordance with the provisions of applicable federal or state laws or regulationsthis Section 9.
Appears in 1 contract
Indemnification of Underwriter. The Trust agrees to indemnify and hold harmless Underwriter and each person who has been, is, or may hereafter be a director, officer, employee, shareholder or control person of Underwriter ("Underwriter Indemnitees") against any loss, damage or expense (including the reasonable costs of investigationinvestigating or defending any claim, action, suit or proceeding and any reasonable counsel fees) reasonably incurred by Underwriter Indemnitees in connection with any claim or in connection with any action, suit or proceeding ("Claims") to which any of them may be a party, which arises out of or is alleged to arise out of or is based upon (a) the Underwriter acting as distributor of the Trust and each Series; (b) the Underwriter or any subsidiary or affiliate of the Underwriter acting as a member of the National Securities Clearing Corporation (or any successor or other entity performing similar functions) (“NSCC”) on behalf of the Trust; (c) the Underwriter or any subsidiary or affiliate of the Underwriter entering into selling agreements, dealer agreements, participation agreements, NSCC Trust SERV or Networking agreements or similar agreements (collectively, “Dealer Agreements”) with financial intermediaries on behalf of the Trust; (d) any of the following: (i) any untrue statement, or alleged untrue statement, of a material fact contained in connection with any Registration Statement, (ii) any omission, or alleged omission, to state a material fact required to be stated in any Registration Statement or necessary to make the matters statements therein not misleading, or (iii) any untrue statement, or alleged untrue statement, of a material fact in any Trust-related advertisement or sales literature, or any omission, or alleged omission, to which state a material fact required to be stated therein to make the statements therein not misleading, in either case notwithstanding the exercise of reasonable care in the preparation or review thereof by the Underwriter; (e) the material breach by the Trust of any provision of this Agreement relatesAgreement; provided, except a loss resulting however, that the Trust's agreement to indemnify the Underwriter Indemnitees pursuant to this Paragraph 9 shall not be construed to cover any Claims (A) pursuant to subsection (d) above to the extent such untrue statement, alleged untrue statement, omission, or alleged omission, was furnished in writing, or omitted from the relevant writing furnished, as the case may be, by the Underwriter for use in the Registration Statement or in corresponding statements made in the prospectus, advertisement or sales literature; (B) arising out of or based upon the willful misfeasance, bad faith or negligence, including clerical errors and mechanical failures, on the part of any of such persons in the performance of Underwriter's duties ’s obligations under this Agreement or from the reckless disregard by any of such persons of Underwriter's ’s obligations and duties under this Agreement, or (C) arising out of or based upon the Underwriter’s failure to comply with laws, rules and regulations applicable to it in connection with its activities hereunder, for all of which exceptions Underwriter shall be liable to the Trust. In the event of a Claim for which the Underwriter Indemnitees may be entitled to indemnification hereunder, the Underwriter shall fully and promptly advise the Trust in writing of all pertinent facts concerning such Claim, but failure to do so in good faith shall not affect the Trust’s indemnification obligations under this Agreement except to the extent that the Trust is materially prejudiced thereby. The Trust will advance attorneys' be entitled to assume the defense of any suit brought to enforce any such Claim if such defense shall be conducted by counsel of good standing chosen by the Trust and approved by the Underwriter, which approval shall not be unreasonably withheld. In the event any such suit is not based solely on an alleged untrue statement, omission, or wrongful act on the Trust’s part, the Underwriter shall have the right to participate in the defense. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing so approved by the Underwriter, the Underwriter Indemnitees in such suit shall bear the fees or other and expenses incurred of any additional counsel retained by any of them, but in any case where the Trust does not elect to assume the defense of any such person suit or in defending case the Underwriter reasonably withholds approval of counsel chosen by the Trust, the Trust will reimburse the Underwriter Indemnitees named as defendants in such suit, for the reasonable fees and expenses of any counsel retained by them to the extent related to a proceeding, upon the undertaking by or on behalf of such person to repay the advance if it is ultimately determined that such person is not entitled to indemnificationClaim covered under this Paragraph 9. In order that the The Trust’s indemnification provisions agreement contained in this Paragraph 9 shall apply, it is understood that if remain operative and in full force and effect regardless of any case investigation made by or on behalf of the Trust may be asked to indemnify Underwriter or any other person or hold Underwriter or any other person harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in questionIndemnitees, and it is further understood that Underwriter will use all reasonable care to identify and notify shall survive the Trust promptly concerning delivery of any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust. The Trust shall have the option to defend Underwriter and any such person against any claim which may be the subject of this indemnification, and in the event that the Trust so elects it will so notify Underwriter, and thereupon the Trust shall take over complete defense of the claim, and neither Underwriter nor any such person shall in such situation initiate further legal or other expenses for which it shall seek indemnification under this Paragraph 9. Underwriter shall in no case confess any claim or make any compromise in any case in which the Trust will be asked to indemnify Underwriter or any such person except with the Trust's written consent. Notwithstanding any other provision of this Agreement, Underwriter shall be entitled to receive and act upon advice of counsel (who may be counsel for the Trust or its own counsel) and shall be without liability for any action reasonably taken or thing reasonably done pursuant to such advice, provided that such action is not in violation of applicable federal or state laws or regulationsShares.
Appears in 1 contract
