Exhibit (h)(vii)
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made this 8th day of September, 2005
(this "Agreement") by and between SEASONS SERIES TRUST (the "Trust") and XXXXX
X. XXXXXXXX ("Indemnitee").
WHEREAS, at the request of the Trust, Indemnitee currently serves as a
trustee of the Trust and may, therefore, be subjected to claims, suits or
proceedings arising as a result of Indemnitee's service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as trustee,
the Trust has agreed to indemnify Indemnitee against liabilities and expenses
that may be incurred by Indemnitee in connection with any such claims, suits or
proceedings; and
WHEREAS, the parties by this Agreement desire to set forth their agreement
regarding indemnification;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Trust and Indemnitee do hereby covenant and agree as
follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "Disinterested Trustee" means a trustee of the Trust (i) who is
not an "Interested Person" of the Trust (including anyone who has been exempted
from being an "Interested Person" by any rule, regulation or order of the
Securities and Exchange Commission) and (ii) against whom none of the
Proceedings with respect to which indemnification is sought or another
Proceeding on the same or similar grounds is then or had been pending.
(b) "Expenses" shall include, without limitation, attorneys' fees,
accountant's fees, costs, judgments, amounts paid in settlement or compromise,
fines, penalties and any or all other liabilities.
(c) "Independent Counsel" means (i) the then-current legal counsel
to the Trustees who are not "Interested Persons" of the Trust or (ii) other
legal counsel chosen by a majority of the Disinterested Trustees (or if there
are no Disinterested Trustees with respect to the matter in question, by a
majority of the Trustees who are not Interested Persons of the Trust) and
determined by them in their reasonable judgment to be independent.
(d) "Interested Person" is as defined in Section 2(a)(9) of the
Investment Company Act of 1940.
(e) "Proceeding" includes all claims, actions, suits or proceedings
(civil, criminal, administrative (including examinations and inspections),
arbitrative, investigative or other, whether formal or informal, including
appeals), actual or threatened except one instituted by the Indemnitee under
Section 6.
Section 2. Services by Indemnitee. Indemnitee agrees to continue to serve
as a trustee of the Trust but may at any time and for any reason resign from
such position. The Trust shall have no obligation under this Agreement to
continue Indemnitee in such position, but if Indemnitee shall cease serving as
Trustee, Indemnitee shall nevertheless retain all rights provided under this
Agreement.
Section 3. Indemnification. Indemnitee shall be entitled to the rights of
indemnification provided in this Section 3 against all Expenses reasonably
incurred or paid by him or her in connection with any Proceeding in which he or
she becomes involved as a party, witness or otherwise by virtue of being or
having been a trustee of the Trust and against amounts paid or incurred by him
or her in the settlement thereof; provided, however no indemnification shall be
provided hereunder to a Trustee:
(i) against any Expense to the Trust or its shareholders by reason
of a final adjudication by the court or other body before which the
proceeding was brought that the Trustee engaged in willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved
in the conduct of his or her office; or
(ii) with regard to any matter as to which the Trustee shall have
been finally adjudicated not to have acted in good faith in the reasonable
belief that his or her action was in the best interest of the Trust; or
(iii) in the event of a settlement involving a payment by a Trustee
or other disposition not involving a final adjudication as provided in
clauses (i) or (ii) above resulting in a payment by a Trustee, unless
there has been either (a) a determination that such Trustee did not engage
in willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office by the court or
other body approving the settlement or other disposition, or (b) a
reasonable determination, based upon a review of readily available facts
(as opposed to a full trial-type inquiry) that he or she did not engage in
such conduct:
(A) by vote of a majority of the Disinterested Trustees acting on
the matter provided that a majority of the Disinterested Trustees then in office
act on the matter; or
(B) by the written opinion of Independent Counsel.
With respect to any such determination or opinion referred to in clause (iii)
above, a rebuttable presumption shall be afforded that the Trustee has not
engaged in willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office.
Section 4. Advancement of Expenses. The Trust shall advance Expenses of
preparation and presentation of a defense to any Proceeding prior to final
disposition thereof upon receipt of an undertaking by or on behalf of the
Trustee to repay such amount if it is ultimately determined that the Trustee is
not entitled to indemnification under this Agreement, provided that either:
(i) such undertaking is secured by a surety bond or some other appropriate
security or the Trust shall be insured against losses arising out of any such
advances; or
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(ii) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees then in office act on
the matter) or Independent Counsel in a written opinion, shall determine, based
upon a review of readily available facts (as opposed to a full trial-type
inquiry), that there is reason to believe that the Trustee ultimately will be
found entitled to indemnification.
Section 5. Procedure for Determination of Entitlement to Indemnification.
(a) Indemnitee shall promptly notify the Trust 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 advance of Expenses covered hereunder; provided, however,
that the failure to give any such notice shall not disqualify Indemnittee from
the right, or otherwise affect in any manner any right of Indemnitee, to
indemnification or the advance of Expenses under this Agreement unless the
Trust's ability to defend in such Proceeding or to obtain proceeds under any
insurance policy is materially and adversely prejudiced thereby, and then only
to the extent the Trust is thereby actually so prejudiced.
(b) To obtain indemnification and advance of Expenses under this
Agreement, Indemnitee shall submit to the Trust a written request to the
Secretary of the Trust. The Secretary of the Trust shall, promptly upon receipt
of such a request for indemnification, advise the Board of Trustees in writing
that Indemnitee has requested indemnification.
(c) If it is determined that Indemnitee is entitled to
indemnification or advance of Expenses as provided in this Agreement, payment to
Indemnitee shall be made within 10 business days after such determination.
Indemnitee shall cooperate with the person making such determination with
respect to Indemnitee's entitlement to indemnification or advance of Expenses,
including providing to such person upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination. Any costs or expenses (including reasonable
attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with
the person making such determination, in response to a request by such person,
shall be borne by the Trust (irrespective of the determination as to
Indemnitee's entitlement to indemnification or advance of Expenses).
Section 6. Remedies of Indemnitee.
(a) In the event that (i) no determination of entitlement to
indemnification or advance of Expenses shall have been made within 60 days after
receipt by the Trust of the request pursuant to Section 5, (ii) a determination
is made that Indemnitee is not entitled to indemnification or advance of
Expenses under this Agreement, (iii) a determination has been made that
Indemnitee is entitled to indemnification or advance of Expenses but, payment of
indemnification or advance of Expenses is not made within ten business days
after receipt by the Trust of written request therefor, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of
Massachusetts, or in any other court of competent jurisdiction, of Indemnitee's
entitlement to such indemnification or advancement of Expenses. Alternatively,
Indemnitee, at Indemnitee's option, may seek an award in arbitration to be
conducted by a single
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arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such proceeding seeking
adjudication or an award in arbitration within 180 days after the date on which
Indemnitee first has the right to commence such proceeding pursuant to this
Section 6.
(b) In the event that Indemnitee, pursuant to Section 6(a), seeks a
judicial adjudication of or an award in arbitration to enforce Indemnitee's
rights under, or to recover damages for breach of, this Agreement, Indemnitee
shall be entitled to recover from the Trust, and shall be indemnified by the
Trust against, any and all expenses (of the types described in the definition of
Expenses in Section 1), actually and reasonably incurred by Indemnitee in such
judicial adjudication or arbitration, but only if Indemnitee prevails therein.
If it shall be determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the indemnification or
advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be appropriately
prorated in the same proportion as the amount of the indemnification or
advancement of expenses awarded in the judicial adjudication or arbitration.
Section 7. Non-Exclusivity; Insurance; Subrogation; Exclusions.
(a) The rights of indemnification and advance of Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may at any time be entitled under applicable law, the
Declaration of Trust or Bylaws of the Trust, any agreement, a vote of
shareholders or a resolution of trustees, or otherwise. No amendment, alteration
or repeal of this Agreement or of any provision hereof shall limit or restrict
any right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee in Indemnitee's status as a Trustee prior to such
amendment, alteration or repeal.
(b) To the extent that the Trust maintains liability insurance for
trustees of the Trust, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
available (including coverage after Indemnitee is no longer serving as a Trustee
for acts and omissions or alleged acts or omissions while serving as Trustee)
for any such trustee under such policy or policies.
(c) In the event of any payment under this Agreement, the Trust
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Trust to bring suit to enforce such rights.
(d) The Trust shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder to the extent Indemnitee
has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
Section 8. Duration of Agreement. This Agreement shall be effective
against the Trust as of the date hereof. This Agreement shall continue until and
terminate ten years after the date that Indemnitee shall have ceased to serve as
a trustee of the Trust, provided, that the rights of Indemnitee hereunder shall
continue until the final termination of any proceeding then
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pending in respect of which Indemnitee is granted rights to indemnification or
advancement of expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 6 relating thereto. This Agreement shall be binding upon the
Trust and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's heirs, executors and administrators. The Trust
agrees that it shall not sell, assign or otherwise transfer all or substantially
all of its assets, or merge or reorganize with any other entity or series
thereof, unless the entity or series to which such sale, assignment or transfer
is being made, or that is the survivor of any such merger or reorganization,
agrees to assume all of the obligations (whether contingent or otherwise) of the
Trust hereunder.
Section 9. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability or the remaining provisions of
this Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable that is not itself invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
Section 10. Exception to Right of Indemnification or Advancement of
Expenses.
(a) Notwithstanding any other provision of this Agreement,
Indemnitee shall not be entitled to indemnification or advance of Expenses under
this Agreement with respect to any Proceeding brought by Indemnitee (other than
a Proceeding under Section 6(a) of this Agreement), unless the bringing of such
Proceeding or making of such claim shall have been approved by a vote of a
majority of the members of the Board of Trustees of the Trust.
(b) Notwithstanding any other provision of this Agreement, the Trust
shall not be liable to indemnify Indemnitee hereunder in the event of willful
misfeasance, bad faith or gross negligence, in the performance of Indemnitee's
duties, or by reason of Indemnitee's reckless disregard of Indemnitee's duties
as a trustee of the Trust.
Section 11. Identical Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
Section 12. Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
Section 13. Modification and Waiver. No supplement, modification or
amendment shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
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Section 14. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is mailed:
(a) If to Indemnitee, to:
Xxxxx X. Xxxxxxxx
Xxxxxxxx School
000 Xxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
with copies to:
Xxxxxx X. Xxxxxxxxx
Xxxxxxxx, Grodd & Xxxxxxxxx, PC
Federal Tower, Suite 500
0000 X. Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
(b) If to the Trust, to:
Xxxx Xxxxxx
Vice President and Secretary
Seasons Series Trust
c/o AIG SunAmerica, Inc.
0000 Xxxxx Xxxxxxx
X00-00
Xxxxxxx, XX 00000
or to such other address as may have been furnished to Indemnitee by the Trust
or to the Trust by Indemnitee, as the case may be.
Section 15. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of Massachusetts without regard to its choice of law principles.
Section 16. Limitation of Liability. The parties hereto agree that the
obligations of the Trust under this Agreement shall not be binding upon any of
the Trustees, shareholders, nominees, officers, employees or agents, whether
past, present or future, of the Trust, individually, but are binding only upon
the assets and property of the Trust, as provided in the Declaration of Trust of
the Trust. The execution and delivery of this Agreement have been authorized by
the Trustees and signed by an authorized officer of the Trust, acting as such,
and neither such authorization by such Trustees nor such execution and delivery
by such officer shall be deemed to have been made by any of them individually or
to impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in the Declaration of Trust of the Trust.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
SEASONS SERIES TRUST
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
Vice President and Secretary
INDEMNITEE
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
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