FORM OF INDEMNIFICATION AGREEMENT
Exhibit h.13
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”) is effective as of July 1, 2022, by and between (i) each trust whose name is set forth on the signature page (each such trust hereafter referred to as the “Trust”), acting on behalf of itself and each of its portfolio series, whether existing on the date hereof (as listed on Appendix A hereto) or subsequently established (the “Series”) and (ii) the trustee of the Trust whose name is set forth on the signature page (the “Trustee”).
(a) “Disabling Conduct” shall mean the Trustee’s willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office.
(b) “Expenses” shall include without limitation all judgments, penalties, fines, amounts paid in settlement or compromise, prohibited transaction excise taxes, liabilities, losses, interest, expenses of investigation, attorneys’ fees, accountants’ 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” shall mean a final decision on the merits by court order or judgment of the court or other body before which a matter was brought, from which no further right of appeal or review exists.
(d) “Non-Party Trustee” shall mean a trustee of the Trust who is not (i) an “interested person” of the Trust as defined in Section 2(a)(19) of the Investment Company Act of
1940, as amended, (ii) a party to the Proceeding with respect to which indemnification or advances are sought or (iii) a party to any other Proceeding based on the same or similar grounds that is then or has been pending.
(e) The term “Proceeding” shall include without limitation any threatened, pending or completed claim, demand, 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, legislative or investigative and, except as otherwise provided herein, shall also include any proceeding brought by or in the right of the Trust or any Series and any proceeding brought by the Trustee or any other trustee (other than a Non-Party Trustee) against the Trust or any Series.
(f) The Trustee’s “service to the relevant Series” shall include without limitation the Trustee’s service as a trustee or advisory trustee of the Trust and his or her service at the request of the Trust or the Series as a trustee, director, officer, employee, agent or representative of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
(g) “Special 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 (i) the Trust or the Trustee (except that a majority of the Non-Party Trustees may determine, in their sole discretion, that any current or prior representation of the Trust or Trustee shall not disqualify such law firm or a member of a law firm from representation if the prior representation is not related to the issue in dispute) or (ii) any other party to the Proceeding (or any party reasonably expected to become a party to the Proceeding) giving rise to a claim for indemnification or advancements hereunder. Notwithstanding the foregoing, however, the term “Special 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.
2. Indemnification. The Trust on behalf of each Series severally shall indemnify and hold harmless the Trustee against any and all Expenses actually incurred or paid by the Trustee in any Proceeding in connection with the Trustee’s service to the relevant Series, subject to the provisions of the following sentence and the provisions of Section 3 and paragraph (h) of Section 6 of this Agreement, provided that in any Proceeding initiated by the Trustee, other than one instituted pursuant to Section 6(d) or 6(f), the initiation of the Proceeding by the Trustee was approved in advance by a majority of the Non-Party Trustees. The Trustee shall be indemnified pursuant to this Section 2 against any and all Expenses unless (i) the Trustee is subject to such Expenses by reason of the Trustee’s not having acted in good faith in the reasonable belief that his or her action was in or not opposed to the best interests of the Series, (ii) the Trustee is liable to the Series or its shareholders by reason of the Trustee’s Disabling Conduct or (iii) in the case of a criminal proceeding, the Trustee had reasonable cause to believe that his or her conduct was unlawful, and with respect to each of (i), (ii) and (iii), there has been a Final Adjudication in the relevant Proceeding that the Trustee’s conduct fell within (i), (ii) or (iii).
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3. Advancement of Expenses. Expenses, including accountants’ and counsel fees incurred by the Trustee (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties), shall be paid from time to time by the Trust on behalf of a Series in advance of Final Adjudication of a Proceeding in connection with the Trustee’s service to a Series, upon receipt by the Trust of (a) the Trustee’s written affirmation of his or her good faith belief that he or she is entitled to indemnification under this Agreement and his or her written undertaking to repay any funds advanced if it is ultimately determined that he or she is not entitled to indemnification under this Agreement, which undertaking must be an unlimited general obligation of the Trustee but need not be secured and may be accepted by the Trust without reference to the financial ability of the Trustee to make repayment or (b) a written confirmation in reasonably acceptable form that the Trust is insured against losses arising by reason of any lawful advancements and that the insurer will pay the Expenses of the Trustee in a reasonably prompt manner. Authorizations under this Section 3 shall be made in writing by a majority of the Non-Party Trustees (provided that a majority of such Non-Party Trustees then in office act on the matter), or Special Counsel stating that the Trustee has complied with the requirements of this Section 3.
4. Presumptions. For purposes of the determination or opinion referred to in Section 3 or clauses (y)(i) or (y)(ii) of subsection (h) of Section 6 of this Agreement, the Non-Party Trustees or Special Counsel, as the case may be, shall be entitled to rely upon a rebuttable presumption that the Trustee has not engaged in Disabling Conduct.
5. Witness Expenses. To the extent the Trustee is, by reason of the Trustee’s service to the relevant Series, a witness for any reason in any Proceeding to which such Trustee is not a party, such Trustee shall be indemnified against any and all Expenses actually incurred by or on behalf of such Trustee in connection therewith.
6. Procedure for Determination of Entitlement to Indemnification and Advancements. A request by the Trustee for indemnification or advancement of Expenses shall be made in writing and shall be accompanied by such relevant documentation and information as is reasonably available to the Trustee. The Secretary of the Trust shall promptly advise the trustees of the Trust of such request.
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If within fourteen (14) days after submission by the Trustee of a written request for indemnification or advancement of Expenses no such Special Counsel shall have been finally selected as provided in the previous paragraph, then either the Trust or the Trustee may petition an appropriate court of the State of Delaware or any other court of competent jurisdiction for the appointment as Special 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 Special Counsel.
The relevant Series shall pay all reasonable fees and Expenses charged or incurred by Special Counsel in connection with his, her or its determinations pursuant to this Agreement and shall pay all reasonable fees and Expenses incident to the procedures described in this paragraph, regardless of the manner in which such Special Counsel was selected or appointed.
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indemnification or advancement of Expenses (or any extension of such period provided under this Section 6(c)). The Trustee shall be entitled to adjudication of such assertion in an appropriate court of the State of Delaware or any other court of competent jurisdiction.
(d) Payment upon Determination of Entitlement. If a determination is made pursuant to Section 2 or Section 3 (or is deemed to be made pursuant to paragraph (c) of this Section 6 and, in the case of advancement of Expenses, the other conditions are satisfied) 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 further Expenses, within ten (10) days after submission of supporting information, including the required undertaking). If such payment is not made when due, the Trustee shall be entitled to adjudication of the Trustee’s entitlement to such indemnification or advancements in an appropriate court of the State of Delaware or any other court of competent jurisdiction. The Trustee shall commence any proceeding seeking adjudication within 60 days 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 and the relevant Series shall be bound by the determination that the Trustee is entitled to indemnification or advancements, absent (i) an intentional misstatement by the Trustee of a material fact, or an intentional omission of a material fact necessary to make his or her statement not materially misleading, in connection with the request for indemnification or advancements, (ii) a prohibition of such indemnification or advancements under applicable law or (iii) a requirement under the Investment Company Act of 1940, as amended, for insurance or security, which has not been satisfied.
(e) Appeal of Adverse Determination. If a determination is made that the Trustee is not entitled to indemnification or advancements (other than determinations that are made by a court), the Trustee shall be entitled to adjudication of such matter in an appropriate court of the State of Delaware or 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. The Trustee shall commence such proceeding or arbitration within 60 days 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 the Trustee shall not be prejudiced by reason of such prior adverse determination.
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presumptions set forth in this Agreement are not valid, binding and enforceable against the Trust or relevant Series and shall stipulate in any such court or before any such arbitrator that the Trust is bound by all the provisions of this Agreement.
(h) Lack of Adjudication. Notwithstanding any provision herein to the contrary, as to any matter disposed of (whether by compromise payment, pursuant to a consent decree or otherwise) without a Final 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 or not opposed to the best interests of the Series or (b) is liable to the Series or its shareholders by reason of Disabling Conduct, indemnification shall be provided if (x) there has been a determination that the Trustee did not engage in Disabling Conduct by the court or other body approving any settlement or other disposition of the matter or (y) there has been a reasonable determination, based upon a review of readily available facts (but not a full trial-type inquiry), that the Trustee acted in good faith in the reasonable belief that the Trustee’s action was in or not opposed to the best interests of the Series and is not liable to the Trust and the relevant Series or its shareholders by reason of Disabling Conduct, by (i) the vote of a majority of the Non-Party Trustees (provided that a majority of such Non-Party Trustees then in office act on the matter) or (ii) Special Counsel in a written opinion.
(a) Non-Exclusive Rights. The provisions for indemnification of, and advancement of Expenses to, the Trustee set forth in this Agreement shall not be deemed exclusive of any other rights to which the Trustee may otherwise be entitled, including any other rights to be indemnified or have Expenses advanced by the Trust. For the avoidance of doubt, such other rights include, but are not limited to, any rights the Trustee may have pursuant to an Indemnification Agreement between the Trustee and each Trust. The Trust shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that the Trustee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise, if such payment is not recoverable from the Trustee.
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to the extent reasonably determined by such counsel to be necessary to protect the interests of the Trustee, and the relevant Series shall indemnify the Trustee therefor to the extent otherwise permitted under this Agreement, if (i) the Trustee reasonably determines that there may be a conflict in the Proceeding between the positions of the Trustee and the positions of the Trust or the other parties to the Proceeding that are indemnified by the Trust and not represented by separate counsel, or the Trustee otherwise reasonably concludes that representation of both the Trustee, the Trust and such other parties by the same counsel would not be appropriate, or (2) the Proceeding involves the Trustee but neither the Trust nor any such other party who is indemnified by the Trust and the Trustee reasonably withholds consent to being represented by counsel selected by the Trust. If the Trust shall not have elected to assume the defense of any such Proceeding for the Trustee within thirty (30) days after receiving written notice thereof from the Trustee, the Trust shall be deemed to have waived any right it might otherwise have to assume such defense. If the Trust does not assume or conduct the defense of any Proceeding, the Trustee shall not consent to a settlement or any other disposition not involving a Final Adjudication without the prior written consent of the Trust.
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respect to this Agreement, including without limitation any right to be subrogated to the Trustee’s rights hereunder, unless otherwise expressly agreed to by the Trust in writing, and the obligation of such insurers to the Trust and the Trustee shall not be deemed to be reduced or impaired in any respect by virtue of the provisions of this Agreement.
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(n) Applicable Law. This Agreement shall be governed by and construed and enforced with respect to each Trust in accordance with the laws of the State of Delaware without reference to principles of conflict of laws.
(p) Miscellaneous. Copies of the Declaration of Trust of each Trust are on file with the Secretary of State of the State of Delaware. The obligations of or arising out of this Agreement are not binding upon any of the Trust’s trustees, officers, employees, agents or shareholders individually, but are binding solely upon the assets and property of the respective Series in accordance with their proportionate interests hereunder. The assets and liabilities of each of the Series are separate and distinct, and the obligations of or arising out of this instrument are binding solely upon the assets or property of the respective Series.
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Virtus ALTERNATIVE SOLUTIONS TRUST, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
TRUSTEE |
VIRTUS ASSET TRUST, |
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Virtus EQUITY Trust, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
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Virtus OPPORTUNITIES Trust, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
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VIRTUS VARIABLE INSURANCE TRUST, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
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Name: | Xxxxxx X. Xxxxxxx | Name: | Xxxxx X. Xxxxx | ||
Title: | President | ||||
Address for Notices: |
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Virtus ALTERNATIVE SOLUTIONS TRUST, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
TRUSTEE |
VIRTUS ASSET TRUST, |
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Virtus EQUITY Trust, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
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Virtus OPPORTUNITIES Trust, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
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VIRTUS VARIABLE INSURANCE TRUST, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
Name: | Xxxxxx X. Xxxxxxx | Name: | Xxxxxxx X. XxXxxxx | ||
Title: | President | ||||
Address for Notices: |
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Virtus ALTERNATIVE SOLUTIONS TRUST, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
TRUSTEE |
VIRTUS ASSET TRUST, |
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Virtus EQUITY Trust, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
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Virtus OPPORTUNITIES Trust, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
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VIRTUS VARIABLE INSURANCE TRUST, on behalf of Itself and each of its Series listed on Appendix A attached hereto |
Name: | Xxxxxx X. Xxxxxxx | Name: | X. Xxxx Xxxxxxxx | ||
Title: | President | ||||
Address for Notices: |
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APPENDIX A
TO
Virtus Alternative Solutions Trust, on behalf of each of:
Xxxxxx Xxxx & Xxxxxx Select MLP and Energy Fund
Virtus KAR Long/Short Equity Fund
Virtus Asset Trust, on behalf of each of:
Virtus Ceredex Large-Cap Value Equity Fund
Virtus Ceredex Mid-Cap Value Equity Fund
Virtus Ceredex Small-Cap Value Equity Fund
Virtus Seix Core Bond Fund
Virtus Seix Corporate Bond Fund
Virtus Seix Floating Rate High Income Fund
Virtus Seix High Grade Municipal Bond Fund
Virtus Seix High Income Fund
Virtus Seix High Yield Fund
Virtus Seix Investment Grade Tax-Exempt Bond Fund
Virtus Seix Short-Term Bond Fund
Virtus Seix Short-Term Municipal Bond Fund
Virtus Seix Total Return Bond Fund
Virtus Seix U.S. Government Securities Ultra-Short Bond Fund
Virtus Seix U.S. Mortgage Fund
Virtus Seix Ultra-Short Bond Fund
Virtus SGA International Growth Fund
Virtus Silvant Large-Cap Growth Stock Fund
Virtus Silvant Small-Cap Growth Stock Fund
Xxxxxx Xxxxxxxxxxx Innovative Growth Stock Fund
Virtus Equity Trust, on behalf of each of:
Virtus KAR Capital Growth Fund
Virtus KAR Equity Income Fund
Virtus KAR Global Quality Dividend Fund
Virtus KAR Mid-Cap Core Fund
Virtus KAR Mid-Cap Growth Fund
Virtus KAR Small-Cap Core Fund
Virtus KAR Small-Cap Growth Fund
Virtus KAR Small-Cap Value Fund
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Virtus KAR Small Mid-Cap Core Fund
Virtus KAR Small Mid-Cap Growth Fund
Virtus KAR Small Mid-Cap Value Fund
Virtus SGA Emerging Markets Growth Fund
Virtus SGA Global Growth Fund
Virtus SGA New Leaders Growth Fund
Virtus Tactical Allocation Fund
Virtus Opportunities Trust, on behalf of each of:
Xxxxxx Xxxx & Xxxxxx Global Infrastructure Fund
Xxxxxx Xxxx & Xxxxxx Global Real Estate Securities Fund
Xxxxxx Xxxx & Xxxxxx International Real Estate Securities Fund
Xxxxxx Xxxx & Xxxxxx Real Asset Fund
Xxxxxx Xxxx & Xxxxxx Real Estate Securities Fund
Virtus FORT Trend Fund
Virtus KAR Developing Markets Fund
Virtus KAR Emerging Markets Small-Cap Fund
Virtus KAR International Small Mid-Cap Fund
Virtus Newfleet Core Plus Bond Fund
Virtus Newfleet High Yield Fund
Virtus Newfleet Low Duration Core Plus Bond Fund
Virtus Newfleet Multi-Sector Intermediate Bond Fund
Virtus Newfleet Multi-Sector Short Term Bond Fund
Virtus Newfleet Senior Floating Rate Fund
Virtus Seix Tax-Exempt Bond Fund
Xxxxxx Xxxxx Harbor Emerging Markets Corporate Debt Fund
Xxxxxx Xxxxx Harbor Emerging Markets Debt Allocation Fund
Xxxxxx Xxxxx Harbor Emerging Markets Debt Fund
Xxxxxx Xxxxx Harbor High Yield Bond Fund
Xxxxxx Xxxxx Harbor Local Markets Fund
Xxxxxx Xxxxx Harbor Strategic Income Fund
Xxxxxx Xxxxxxxx Emerging Markets Opportunities Fund
Xxxxxx Xxxxxxxx Foreign Opportunities Fund
Xxxxxx Xxxxxxxx Global Opportunities Fund
Xxxxxx Xxxxxxxx Greater European Opportunities Fund
Virtus Variable Insurance Trust, on behalf of each of:
Xxxxxx Xxxx & Xxxxxx Real Estate Securities Series
Virtus KAR Capital Growth Series
Virtus KAR Equity Income Series
Virtus KAR Small-Cap Growth Series
Virtus KAR Small-Cap Value Series
Virtus Newfleet Multi-Sector Intermediate Bond Series
Virtus SGA International Growth Series
Virtus Strategic Allocation Series
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