INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made as of the date
set forth on the signature page by and between Xxx Xxx Funds, a Massachusetts
business trust (the "Fund"), and the Trustee of the Fund whose name is set forth
on the signature page (the "Trustee").
WHEREAS, the Trustee is a Trustee of the Fund, and the Fund wishes the
Trustee to continue to serve in that capacity; and
WHEREAS, the Amended and Restated Master Trust Agreement and Bylaws of
the Fund, and applicable laws, permit the Fund to obligate itself contractually
to indemnify and hold the Trustee harmless to the fullest extent permitted by
law; and
WHEREAS, to induce the Trustee to continue to provide services to the
Fund as a member of the Board and to provide the Trustee with contractual
assurance that indemnification will be available to the Trustee, the Fund
desires to provide the Trustee with protection against personal liability as
more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements set forth herein, the parties hereby agree as set forth below.
Certain capitalized terms used herein are defined in Section 7.
1. INDEMNIFICATION. The Fund shall indemnify and hold harmless the
Trustee against any and all Expenses actually and reasonably incurred by the
Trustee in any Proceeding arising out of or in connection with the Trustee's
service to the Fund, to the fullest extent permitted by the Amended and Restated
Master Trust Agreement and Bylaws of the Fund and applicable law, as now or
hereafter in force, subject to the provisions of paragraphs (a) and (b) of this
Section 1.
(a) DISABLING CONDUCT. The Trustee shall be indemnified pursuant to
this Section 1 against any and all Expenses unless the Trustee is subject to
such Expenses by reason of the Trustee's willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of his
or her office as defined for purposes of Section 17(h) of the Investment Company
Act of 1940, as amended ("Disabling Conduct").
(b) CONDITIONS TO INDEMNIFICATION. The Trustee shall be indemnified
pursuant to this Section 1 if either:
(1) the court or other body before which the Proceeding
relating to the Trustee's liability is brought shall have rendered a
final adjudication on the merits, finding that the Trustee (i) is not
liable by reason of Disabling Conduct or (ii) is otherwise entitled to
indemnification; or
(2) the Trustee shall have been successful on the merits or
otherwise in defense of the Proceeding (other than by compromise or
settlement); or
(3) in the absence of such a final adjudication or success on
the merits or otherwise, a determination shall have been made that the
Trustee is not liable by reason of Disabling Conduct, based upon a
review of the facts, by either the vote of a majority of a quorum of
Independent Trustees who are not parties to the Proceeding, or
Independent Counsel in a written opinion.
2. ADVANCEMENT OF EXPENSES. The Fund shall promptly advance funds to
the Trustee to cover any and all Expenses the Trustee incurs with respect to any
Proceeding arising out of or in connection with the Trustee's service to the
Fund, to the fullest extent permitted by applicable law, as now or hereafter in
force, subject to the provisions of paragraphs (a) and (b) of this Section 2.
(a) AFFIRMATION OF CONDUCT AND UNDERTAKING. A request by the Trustee
for advancement of funds pursuant to this Section 2 shall be accompanied by the
Trustee's written affirmation of his or her good faith belief that he or she met
the standard of conduct necessary for indemnification and a written undertaking
by the Trustee (or on the Trustee's behalf) to repay such advancements unless it
is ultimately determined that he or she has not engaged in Disabling Conduct.
(b) CONDITIONS TO ADVANCEMENT. Funds shall be advanced to the Trustee
pursuant to this Section 2 only if (1) the Fund is insured against losses
arising by reason of any lawful advancements, (2) a determination is made by the
vote of a majority of a quorum of Independent Trustees, or by Independent
Counsel in a written opinion, based on a review of the readily available facts
then known (as opposed to a full trial-type inquiry), that there is reason to
believe that the Trustee ultimately will be found to be entitled to
indemnification pursuant to Section 1, or (3) in the absence of insurance or
such a determination, the Trustee shall provide security to the Fund for such
undertaking (which security shall be adequate to secure the undertaking as
determined by the Independent Trustees).
3. PRESUMPTIONS.
(a) TERMINATION. The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, create a presumption that the Trustee engaged in Disabling
Conduct.
(b) GENERAL. Except as provided in subsection (a) of this Section 3, in
any determination by the Independent Trustees or Independent Counsel, the
Trustee shall be afforded a presumption rebuttable by clear and convincing
evidence that the Trustee did not engage in Disabling Conduct.
4. WITNESS EXPENSES. To the extent that the Trustee is, by reason of
the Trustee's service to the Fund, 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 and reasonably incurred by or on behalf of such
Trustee in connection therewith.
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5. 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 Fund shall promptly advise the Board of such request.
(a) METHODS OF DETERMINATION. Upon the Trustee's request for
indemnification or advancement of Expenses, a determination with respect to the
Trustee's entitlement thereto shall be made as and to the extent provided in
Section 1 or Section 2, as the case may be. The Trustee shall cooperate with the
person or persons making such determination, including without limitation
providing to such persons upon reasonable advance request any documentation or
information that is not privileged or otherwise protected from disclosure and is
reasonably available to the Trustee and reasonably necessary to such
determination. Any failure by the Trustee to cooperate with the person or
persons making such determination shall extend as necessary and appropriate the
period or periods described in paragraph (c) of Section 5 regarding
determinations deemed to have been made. Any and all Expenses incurred by the
Trustee in so cooperating shall be borne by the Fund, irrespective of the
determination as to the Trustee's entitlement to indemnification or advancement
of Expenses.
(b) INDEPENDENT COUNSEL. If the determination of entitlement to
indemnification or advancement of Expenses is to be made by Independent Counsel,
the Independent Counsel shall be selected by the Board, and the Fund shall give
written notice to the Trustee advising the Trustee of the identity of the
Independent Counsel selected. The Trustee may, within five days after receipt of
such written notice, deliver to the Fund a written objection to such selection.
Such objection may be asserted only on the ground that the Independent Counsel
so selected does not meet the requirement of independence set forth in Section
7, and shall set forth with particularity the factual basis of such assertion.
Promptly after receipt of such objection, another Independent Counsel shall be
selected by the Board, and the Fund shall give written notice to the Trustee
advising the Trustee of the identity of the Independent Counsel selected. The
Trustee may, within five days after receipt of such written notice, deliver to
the Fund a written objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected does not meet the
requirement of independence set forth in Section 7, and shall set forth with
particularity the factual basis of such assertion. The Board shall determine the
merits of the objection and, in its discretion, either determine that the
proposed Independent Counsel shall, despite the objection, act as such hereunder
or select another Independent Counsel who shall act as such hereunder.
If within fourteen days (which period shall be extended by another
fourteen 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 shall have been finally selected as provided in the
previous paragraph, then either the Fund or the Trustee may petition an
appropriate court of the State of New York or any other court of competent
jurisdiction for the appointment as Independent Counsel of a person
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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 Fund 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 incident to the
procedures described in this paragraph (b), regardless of the manner in which
such Independent Counsel was selected or appointed.
(c) FAILURE TO MAKE TIMELY DETERMINATION. Subject to paragraph (a) of
Section 5, if the person or persons empowered or selected under Section 1 or
Section 2 to determine whether the Trustee is entitled to indemnification or
advancement of Expenses (other than determinations that are made or to be made
by a court) shall not have made such determination within thirty days after
receipt by the Fund of the request therefor, the requisite determination of
entitlement to indemnification or advancement of Expenses shall be deemed to
have been made, and the Trustee shall be entitled to such 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 advancement of Expenses, (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;
provided, however, that such period may be extended for a reasonable period of
time, not to exceed an additional thirty days, if the person or persons making
the determination in good faith require such additional time to obtain or
evaluate documentation or information relating thereto.
(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 and, in the case of advancement of Expenses, the
other conditions thereof 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 days after
such determination (and, in the case of advancements of Expenses, within ten
days after submission of supporting information, including the required
affirmation, 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 State of New York, or in any other court of competent
jurisdiction, of the Trustee's entitlement to such indemnification or
advancements. The Trustee shall commence any proceeding seeking 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 Fund 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.
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(e) APPEAL OF ADVERSE DETERMINATION. If a determination is made that
the Trustee is not entitled to indemnification or advancements, the Trustee
shall be entitled to an adjudication of such matter in an appropriate court of
the State of New York 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 Commercial
Arbitration Rules of the American Arbitration Association. 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 the Trustee shall not be prejudiced by reason of such prior
adverse determination.
(f) EXPENSES OF APPEAL. If the Trustee seeks arbitration or a judicial
adjudication to determine or enforce his or her rights under, or to recover
damages for breach of, the indemnification or Expense advancement provisions of
this Agreement, the Trustee shall be entitled to recover from the Fund, and
shall be indemnified by the Fund against, any and all Expenses actually and
reasonably incurred by the Trustee in such arbitration or judicial adjudication,
but only if the Trustee prevails therein. If it shall be determined in such
arbitration or judicial adjudication that the Trustee is entitled to receive
part but not all of the indemnification or advancement of Expenses sought, the
expenses incurred by the Trustee in connection with such arbitration or judicial
adjudication shall be appropriately prorated.
(g) VALIDITY OF AGREEMENT. In any arbitration or judicial proceeding
commenced pursuant to this Section 5, the Fund shall be precluded from asserting
that the procedures and presumptions set forth in this Agreement are not valid,
binding and enforceable against the Fund, and shall stipulate in any such court
or before any such arbitrator that the Fund is bound by all the provisions of
this Agreement.
6. GENERAL PROVISIONS.
(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 Fund. The Fund 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.
(b) CONTINUATION OF PROVISIONS. This Agreement shall be binding upon
all successors of the Fund, including without limitation any transferee of all
or substantially all assets of the Fund and any successor by merger,
consolidation, or operation of law, and shall inure to the benefit of the
Trustee's spouse, heirs, assigns, devisees, executors, administrators and legal
representatives. The provisions of this Agreement shall continue until the later
of (1) ten years after the Trustee has ceased to provide any service to the
Fund, and (2) the final termination of all Proceedings in respect of which the
Trustee has asserted, is entitled to assert, or has been granted rights of
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indemnification or advancement of Expenses hereunder and of any proceeding
commenced by the Trustee pursuant to Section 5 relating thereto. No amendment of
the Amended and Restated Master Trust Agreement or Bylaws of the Fund shall
limit or eliminate the right of the Trustee to indemnification and advancement
of Expenses set forth in this Agreement.
(c) SELECTION OF COUNSEL. The Fund shall be entitled to assume the
defense of any Proceeding for which the Trustee seeks indemnification or
advancement of Expenses under this Agreement. However, counsel selected by the
Trustee shall conduct the defense of the Trustee to the extent reasonably
determined by such counsel to be necessary to protect the interests of the
Trustee, and the Fund shall indemnify the Trustee therefor to the extent
otherwise permitted under this Agreement, if (1) the Trustee reasonably
determines that there may be a conflict in the Proceeding between the positions
of the Trustee and the positions of the Fund or the other parties to the
Proceeding that are indemnified by the Fund and not represented by separate
counsel, or the Trustee otherwise reasonably concludes that representation of
both the Trustee, the Fund and such other parties by the same counsel would not
be appropriate, or (2) the Proceeding involves the Trustee, but neither the Fund
nor any such other party who is indemnified by the Fund, and the Trustee
reasonably withholds consent to being represented by counsel selected by the
Fund. If the Fund shall not have elected to assume the defense of any such
Proceeding for the Trustee within thirty days after receiving written notice
thereof from the Trustee, the Fund shall be deemed to have waived any right it
might otherwise have to assume such defense.
(d) D&O INSURANCE. To the extent the Fund maintains an insurance policy
or policies providing Trustees and officers liability insurance, the Trustee
shall be covered by such policy or policies at all times when serving as a
member of the Board, in accordance with its or their terms, to the maximum
extent of the coverage available for any other similarly situated Trustee or
officer of the Fund, it being understood that certain policies may be
principally designed, and generally only available, for Independent Trustees and
thus the benefits of this section in respect of such policies shall extend only
to such Independent Trustees. For a period of six years after the Trustee has
ceased to serve as a member of the Board and to the extent insurance as provided
in the previous sentence does not continue to cover the Trustee even though he
is no longer serving as a member of the Board, and subject to the understanding
in the previous sentence, the Fund shall purchase and maintain in effect,
through "tail" or other appropriate coverage, one or more policies of insurance
on behalf of the Trustee to the maximum extent of the coverage provided to the
then serving members of the Board, unless the purchase of such insurance by the
Fund is not permitted by applicable law, including for these purposes any
fiduciary duties applicable to the persons then constituting the Board.
(e) SUBROGATION. In the event of any payment by the Fund pursuant to
this Agreement, the Fund shall be subrogated to the extent of such payment to
all of the rights of recovery of the Trustee, who shall, upon reasonable written
request by the Fund and at the Fund's expense, execute all such documents and
take all such reasonable actions as are necessary to enable the Fund to enforce
such rights. Nothing
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in this Agreement shall be deemed (1) to diminish or otherwise restrict the
right of the Fund or the Trustee to proceed or collect against any insurers or
(2) to give such insurers any rights against the Fund under or with 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 Fund in
writing, and the obligation of such insurers to the Fund and the Trustee shall
not be deemed to be reduced or impaired in any respect by virtue of the
provisions of this Agreement.
(f) NOTICE OF PROCEEDINGS. The Trustee shall promptly notify the Fund
in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding which may
be subject to indemnification or advancement of Expenses pursuant to this
Agreement, but no delay in providing such notice shall in any way limit or
affect the Trustee's rights or the Fund's obligations under this Agreement.
(g) NOTICES. All notices, requests, demands and other communications to
a party pursuant to this Agreement shall be in writing, addressed to such party
at the address specified on the signature page of this Agreement (or such other
address as may have been furnished by such party by notice in accordance with
this paragraph), and shall be deemed to have been duly given when delivered
personally (with a written receipt by the addressee) or two days after being
sent (1) by certified or registered mail, postage prepaid, return receipt
requested, or (2) by nationally recognized overnight courier service.
(h) SEVERABILITY. If any provision of this Agreement shall be held to
be invalid, illegal, or unenforceable, in whole or in part, for any reason
whatsoever, (1) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
Section of this Agreement containing any provision that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby,
and (2) to the fullest extent possible, the remaining provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
(i) MODIFICATION AND WAIVER. This Agreement supersedes any existing or
prior agreement between the Fund and the Trustee pertaining to the subject
matter of indemnification, advancement of expenses and insurance, other than the
Amended and Restated Master Trust Agreement and Bylaws of the Fund and the terms
of any liability insurance policies, which shall not be modified or amended by
this Agreement. No supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by both parties or their respective
successors or legal representatives; provided, however, that any supplements,
modifications or amendments to the Amended and Restated Master Trust Agreement,
Bylaws or the terms of any liability insurance policies shall be deemed not to
constitute supplements, modifications or amendments to this Agreement. Any
waiver by either party of any breach by the other party of any provision
contained in this Agreement to be performed by the other party must be in
writing and signed by the waiving party or such party's
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successor or legal representative, and no such waiver shall be deemed a waiver
of similar or other provisions at the same or any prior or subsequent time.
(j) HEADINGS. The headings of the Sections of this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
(k) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, and all of which when taken
together shall constitute one document.
(l) 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 Fund and the Trustee
submit to the jurisdiction of all state and federal courts sitting in the State
of New York.
(m) WAIVER OF RIGHT TO JURY TRIAL. BY EXECUTING THIS AGREEMENT, THE
PARTIES KNOWINGLY AND WILLINGLY WAIVE ANY RIGHT THEY HAVE UNDER APPLICABLE LAW
TO A TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR THE ISSUES RAISED BY THAT DISPUTE.
7. LIABILITY OF SHAREHOLDERS AND OFFICERS AND TRUSTEES OF THE FUND.
Except as provided for in this Agreement, neither the shareholders of any
portfolio series of the Fund nor the Trustees or officers of the Fund shall be
liable for any claim against, or loss suffered under this Agreement by, the Fund
in connection with the matters to which this Agreement relates; provided,
however, that no provision of this Agreement shall be deemed to protect any such
shareholder of any portfolio series of the Fund or the Trustees or officers of
the Fund against any liability to which such persons might otherwise be subject
by reason of any willful misfeasance, bad faith or gross negligence in the
performance of their duties or the reckless disregard of their obligations and
duties under this Agreement.
8. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "Board" means the Board of Trustees of the Fund.
(b) "Disabling Conduct" shall be as defined in Section 1.
(c) "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.
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(d) "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.
(e) "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 Fund or the Trustee in any matter
material to either, or (B) any other party to the Proceeding giving rise to a
claim for indemnification or advancements hereunder. 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 Fund 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.
(f) "Independent Trustee" shall mean a Trustee of the Fund who is
neither an "interested person" of the Fund 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.
(g) 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.
(h) The Trustee's "service to the Fund" shall include without
limitation the Trustee's status or service as a Trustee, officer, employee,
agent or representative of the Fund, and his or her service at the request of
the Fund as a Trustee, officer, employee, agent or representative of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth below.
Dated:
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XXX XXX FUNDS
By:
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Name:
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Title:
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Address for notices:
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
TRUSTEE:
Name:
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Address for notices:
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