FORM OF INDEMNIFICATION AGREEMENT
Exhibit 99.(h)(5)
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the “Agreement”) is made as of the date set forth on the signature page by and between Xxxxxxx Xxxxxxx Funds, an unincorporated business trust organized under the laws of The Commonwealth of Massachusetts (the “Trust”) and the trustee of the Trust whose name is set forth on the signature page (the “Trustee”).
Certain capitalized terms used herein are defined in Section 7.
1. INDEMNIFICATION. The Trust shall indemnify and hold harmless the Trustee, against any and all Expenses actually and reasonably incurred by the Trustee in any Proceeding in which the Trustee may be or may have been involved as a party or otherwise or with which the Trustee may be or may have been threatened, while in office or thereafter, by reason of any alleged act or omission as a trustee of the Trust or arising out of or in connection with the Trustee’s service to the Trust to the fullest extent permitted by the Governing Documents, the laws of the Commonwealth of Massachusetts, the Securities Act of 1933, as amended and the Investment Company Act of 1940, as amended. Notwithstanding the foregoing, the Trustee shall not be indemnified or held harmless (a) with respect to any matter as to which the Trustee shall have been finally adjudicated in a decision on the merits in a relevant Proceeding not to have acted in good faith in the reasonable belief that his or her action was in the best interests of the Trust; or (b) against any liability to the Trust or its shareholders to which the Trustee would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office.
3. PRESUMPTIONS. For purposes of making any determination as to entitlement to indemnification or an advancement that is required under this Agreement, such determination shall be made, at Trustee’s option, either by resolution adopted by a majority of the Independent Trustees or by Independent Counsel in a written opinion submitted to the Board, a copy of which shall be delivered to Trustee. Any person making a determination hereunder shall proceed under a rebuttable presumption that the Trustee has not engaged in willful misfeasance, bad faith, gross negligence or reckless disregard of Trustee’s duties as a trustee and/or officer in connection with actions taken while acting in Trustee’s capacity as a trustee and/or officer and were based on Trustee’s determination that those actions were in the best interests of the Trust and its shareholders; provided that Trustee is not an interested person of the Trust under Section 2(a)(19) of the Investment Company Act of 1940, as amended (or is an interested person solely by reason of being an officer of the Trust). To overcome such presumption and make a contrary determination, the Trust shall bear the burden of proof and persuasion to show by clear and convincing evidence, that the Trust is prohibited by applicable law from providing indemnification or advancement of expenses hereunder.
4. WITNESS EXPENSES. To the extent that the Trustee is, by reason of the Trustee’s service to the Trust, a witness for any reason in any Proceeding to which the Trustee is not a party, the Trustee shall be indemnified against any and all Expenses actually and reasonably incurred by or on behalf of the Trustee in connection therewith.
Any Expenses reasonably incurred by the Trustee in so cooperating shall be borne by the Trust, irrespective of the determination as to the Trustee’s entitlement to indemnification or advancement of Expenses. Any counsel selected pursuant hereto to make the relevant determination shall be an Independent Counsel.
If within thirty (30) days (which period shall be extended by another fifteen (15) days if the Trustee objects to the first Independent Counsel selected by the Board as provided in the previous paragraph) after submission by the Trustee of a written request for indemnification or advancement of Expenses no such Independent Counsel has been finally selected as provided in the previous paragraph, then either the Trust or the Trustee may petition any court of competent jurisdiction for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person so appointed shall act as Independent Counsel.
The Trust shall pay all reasonable fees and Expenses charged or incurred by Independent Counsel in connection with his or her determinations pursuant to this Agreement, and shall pay all reasonable fees and Expenses of the Trustee incurred incident to the procedures described in this paragraph (b), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) Payment Upon Determination of Entitlement. If a determination is made pursuant to Section 1 or Section 2 (or is deemed to be made pursuant to paragraph (c) of this Section 5) that the Trustee is entitled to indemnification or advancement of Expenses, payment of any indemnification amounts or advancements owing to the Trustee shall be made within ten (10) days after such determination (and, in the case of advancements of Expenses, within ten (10) days after submission of supporting information, including the required undertaking and evidence of any required security). If such payment is not made when due, the Trustee shall be entitled to an adjudication in an appropriate court of The Commonwealth of Massachusetts, or in any other court of competent jurisdiction, of the Trustee’s entitlement to such indemnification or advancement. The Trustee shall commence any proceeding seeking such adjudication within one year following the date on which he or she first has the right to commence such proceeding pursuant to this paragraph (d). In any such proceeding, the Trust shall be bound by the determination that the Trustee is entitled to indemnification or advancement, absent (i) an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make the Trustee’s statement not materially misleading, in connection with the request for indemnification or advancements or (ii) a prohibition of such indemnification or advancement under applicable law.
(e) Appeal of Adverse Determination. If a determination is made that the Trustee is not entitled to indemnification or advancement, the Trustee shall be entitled to an adjudication of such matter in an appropriate court of The Commonwealth of Massachusetts or in any other court of competent jurisdiction. Alternatively, the Trustee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the rules of the American Arbitration Association at a location selected by the Trustee. The Trustee shall commence such proceeding or arbitration within one year following the date on which the adverse determination is made. Any such judicial proceeding or arbitration shall be conducted in all respects as a de novo trial or arbitration on the merits, and such adverse determination shall not be introduced as evidence or otherwise used in said proceeding as a basis for ruling on the merits of the Trustee’s right to indemnification or advancement of expenses.
(h) Lack of Adjudication. Notwithstanding any provision herein to the contrary, as to any matter disposed of (whether by a compromise payment, pursuant to a consent decree or otherwise) without an adjudication by a court, or by any other body before which the Proceeding was brought, that the Trustee either (a) did not act in good faith in the reasonable belief that the Trustee’s action was in the best interests of the Trust or (b) is liable by reason of the Trustee’s willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of the Trustee’s office, indemnification shall be provided if (x) approved as in the best interest of the Trust, after notice that it involves such indemnification, by at least a majority of the Independent Trustees acting on the matter (provided that a majority of such Independent Trustees then in office act on the matter), upon a determination, based upon a review of readily available facts (as opposed to a full trial-type inquiry) that the Trustee acted in good faith in the reasonable belief that the Trustee’s action was in the best interests of the Trust and that such indemnification would not protect the Trustee against any liability to which the Trustee would otherwise be subject by reason of the Trustee’s willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of the Trustee’s office, or (y) there has been obtained an opinion in writing of Independent Counsel, based upon a review of readily available facts (as opposed to a full trial-type inquiry), to the effect that the Trustee appears to have acted in good faith in the reasonable belief that the Trustee’s action was in the best interests of the Trust and that such indemnification would not protect the Trustee against any liability to which the Trustee would otherwise be subject by reason of the Trustee’s willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of the Trustee’s office.
(k) Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of The Commonwealth of Massachusetts without reference to principles of conflict of laws. The Trust and the Trustee submit to the jurisdiction of all state and federal courts sitting in The Commonwealth of Massachusetts.
(a) “Board” means the board of trustees of the Trust.
(b) “Expenses” shall include without limitation all judgments, penalties, fines, amounts paid or to be paid in settlement, ERISA excise taxes, liabilities, losses, interest, expenses of investigation, attorneys’ fees, retainers, court costs, transcript costs, fees of experts and witnesses, expenses of preparing for and attending depositions and other proceedings, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other costs, disbursements or expenses of the type customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or acting as a witness in a Proceeding.
(c) “Final adjudication” or “judgment” shall mean a final adjudication by court order or judgment of the court or other body before which a matter is pending, from which no further right of appeal or review exists.
(d) “Independent Counsel” shall mean a law firm, or a member of a law firm, that is experienced in matters of investment company law and neither at the time of designation is, nor in the five years immediately preceding such designation was, retained to represent (A) the Trust or the Trustee in any matter material to either (other than a matter material to the Trustee in his capacity as such), or (B) any other party to the Proceeding giving rise to a claim for indemnification or advancements hereunder (other than another trustee of the Trust in his or her capacity as such). Notwithstanding the foregoing, however, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Trust or the Trustee in an action to determine the Trustee’s rights pursuant to this Agreement, regardless of when the Trustee’s act or failure to act occurred.
(e) “Independent Trustees” shall include any trustee of the Trust who is neither an “interested person” of the Trust as defined in Section 2(a)(19) of the Investment Company Act of 1940, as amended, nor a party to the Proceeding with respect to which indemnification or advances are sought nor a party to any other Proceeding based on the same or similar grounds which is then or has been pending.
(f) The term “Proceeding” shall include without limitation any threatened, pending or completed claim, demand, threat, discovery request, request for testimony or information, action, suit, arbitration, alternative dispute mechanism, investigation, hearing or other proceeding, including any appeal from any of the foregoing, whether civil, criminal, administrative or investigative.
(g) The Trustee’s “service to the Trust” shall include without limitation the Trustee’s status or service as a trustee, officer, employee, agent or representative of the Trust and his or her service at the request of the Trust as a trustee, director, officer, employee, agent or representative of another organization in which the Trust has any interest as a shareholder, creditor or otherwise.
8. MISCELLANEOUS. A copy of the Third Amended and Restated Agreement and Declaration of Trust of the Trust, as amended or restated from time to time, is on file with the Secretary of the Commonwealth of Massachusetts, and notice is hereby given that this Agreement is executed on behalf of the Trust by an officer or trustee of the Trust in his or her capacity as an officer or trustee of the Trust and not individually and that the obligations of or arising out of this Agreement are not binding upon any of the trustees, officers or shareholders individually but are binding only upon the assets and property of the Trust. Furthermore, notice is given that the assets and liabilities of each series of the Trust are separate and distinct and that the obligations of or arising out of this Agreement with respect to the series of the Trust are several and not joint, and to the extent not otherwise reasonably allocated among such series by the trustees of the Trust, shall be deemed to have been allocated in accordance with the relative net assets of such series, and the Trustee agrees not to proceed against any series for the obligations of another series.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth below.
Dated: | ||||
Xxxxxxx Xxxxxxx Funds | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address for notices: | ||||
Xxxxxxx Xxxxxxx Funds 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 | ||||
TRUSTEE: | ||
Print Name: | ||
Address for notices: |