(d)(9)
Agreement
This Agreement (the "Agreement"), by and between Investment Trust, a
Massachusetts business trust (the "Trust"), on its own behalf and on behalf of
Xxxxxxx S&P 500 Index Fund, a series of the Trust (the "Fund"), and Bankers
Trust Company, a New York banking corporation ("Bankers"), is made as of
September 9, 1999.
WHEREAS, the Fund operates as a feeder fund in a master-feeder fund
arrangement with Equity 500 Index Portfolio (the "Portfolio"), a registered
open-end management investment company organized as a trust under the laws of
the State of New York;
WHEREAS, Bankers serves as investment adviser to the Portfolio pursuant
to an investment advisory agreement;
WHEREAS, the Portfolio is soliciting the vote of the Fund, as a
shareholder of the Portfolio, on proposals (a) to approve a new investment
advisory agreement between the Portfolio and Bankers; (b) to elect the nominees
to the Board of Trustees of the Portfolio; and (c) to ratify
PricewaterhouseCoopers LLP as the Portfolio's independent accountant
(collectively the "Proposals"), as described more fully in the Fund's definitive
proxy statement dated September 2, 1999 (the "Proxy Statement"), a copy of which
is attached hereto;
WHEREAS, the Fund expects to hold a Special Meeting of the Shareholders
of the Fund on or about October 13, 1999 to vote on the Proposals in order to
determine how to vote the shares of the Portfolio held by the Fund;
WHEREAS, the Board of Trustees of the Trust desires to make a
recommendation to the shareholders of the Fund whether to vote in favor of the
Proposals; and
WHEREAS, the Board of Trustees of the Trust shall base its
recommendation on (1) the information directly or indirectly related to Bankers,
the Portfolio and the nominees to the Board of Trustees of Bankers, furnished to
the Trust by Bankers, either orally or in writing, that is reflected in the
Proxy Statement, and (2) the representations and warranties contained in this
Agreement (collectively, the "Information").
NOW THEREFORE, in consideration of the premises and of the covenants
and agreements contained herein, in order to induce the Trustees of the Trust to
recommend to the shareholders of the Fund that they vote in favor of each
Proposal, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby covenant and agree as
follows:
1. Representations and Warranties. Bankers represents, warrants
and acknowledges that:
(a) it has full power and authority, and has taken all
action necessary, to execute, deliver and perform
this Agreement, and to fulfill all of its obligations
hereunder;
(b) the execution, delivery and performance by it of this
Agreement, and fulfillment of all of its obligations
hereunder, do not and will not violate, conflict
with, or constitute a breach of, its charter or
by-laws, any law or regulation applicable to it, or
any other material agreement to which it is a party
or by which it is bound;
(c) no Information provided by Bankers to the Indemnified
Parties (as defined below) in connection with the
Proposals, nor any representation or warranty made by
Bankers under this Agreement, is false or misleading
with respect to any material fact or omits to state a
material fact necessary in order to make the
statements therein not false or misleading;
(d) Bankers has disclosed to the Trust all information
regarding Bankers and any "affiliated persons" of
Bankers, as that term is defined under the Investment
Company Act of 1940, as amended (the "1940 Act"),
that would require disclosure in the Proxy Statement
under Schedule 14A ("Schedule 14A") under the
Securities Exchange Act of 1934, as amended;
provided, however, that an inadvertent omission of
immaterial information shall not be considered a
breach of this Agreement.
(e) Bankers is not aware of any conduct by (i) any
nominee for election as a Trustee of the Portfolio
that is described in Section 9(a)(1) or (2) of the
1940 Act, (ii) any affiliated person of any such
nominee that is described in Section 9(a)(3) of the
1940 Act, (iii) any such nominee that would require
disclosure in the Proxy Statement under Schedule 14A,
or (iv) any such nominee that would otherwise disable
that nominee from legally serving on the Board of
Trustees of the Portfolio;
(f) Bankers is not aware of any circumstances arising
from the merger of Bankers Trust Corporation, the
parent company of Bankers, and Circle Acquisition
Corporation, a wholly-owned subsidiary of Deutsche
Bank, A.G. (the "Merger") that might result in an
"unfair burden" being imposed on the Portfolio, as
that term is defined in the 1940 Act;
(g) all current members of the Board of Trustees of the
Portfolio are not "interested persons" of Bankers,
within the meaning of the 1940 Act, and at least 75%
of the members of the Board of Trustees of the
Portfolio will
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not be "interested persons" of Bankers during the
three (3) year period immediately following the date
of the Merger; and
(h) this Agreement has been duly executed and delivered
by Bankers and constitutes its legal, valid and
binding obligation, enforceable against it in
accordance with the terms hereof.
2. Indemnification.
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(a) Bankers shall indemnify and hold the Trust and the
Fund, their trustees, officers, representatives, and
controlling persons, and their respective successors
and assigns (the "Indemnified Parties," and
individually each an "Indemnified Party"), harmless
from and against any liabilities, demands, claims,
actions or causes of action, assessments, losses,
fines, penalties, costs (including all attorneys' and
expert witness fees), damages and expenses,
including, without limitation, those asserted by any
federal, state, local or foreign governmental entity,
or third party (any and all of the foregoing being
referred to as "Losses" or individually a "Loss"),
sustained or incurred by the Indemnified Parties to
the extent any such Loss is resulting from any breach
or any alleged breach of a representation or warranty
made by Bankers herein.
(b) Bankers will be entitled to participate at its own
expense in the defense or, if it so elects, to assume
the defense of any suit brought to enforce any such
liability, but, if Bankers elects to assume the
defense, such defense shall be conducted by counsel
chosen by Bankers. In the event Bankers elects to
assume the defense of any such suit and retain such
counsel, each Indemnified Party may retain additional
counsel but shall bear the fees and expenses of such
counsel unless (A) Bankers shall have specifically
authorized the retaining of such counsel or (B) the
parties to such suit include Bankers and any
Indemnified Party, and any such Indemnified Party has
been advised by counsel that one or more legal
defenses may be available to it that may not be
available to Bankers in which case Bankers shall not
be entitled to assume the defense of such suit
notwithstanding the obligations to bear the fees and
expenses of such counsel. Bankers shall not be liable
to indemnify any Indemnified Party for any settlement
of any such claim effected without Bankers' written
consent, which consent shall not be unreasonably
withheld or delayed.
(c) Nothing in this Section 2 shall be construed to
provide for indemnification in violation of Section
17(i) of the 1940 Act or any other applicable federal
securities laws. In the event that any court
determines that, notwithstanding the foregoing, any
particular indemnification sought hereunder violates
the aforesaid Section 17(i) (or other applicable
provisions of the federal securities laws), it is the
intent of the parties that
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any court shall have the power to reform or construe
such provisions in such manner as to render the same
enforceable, or, alternatively, substitute other
provisions (including, without limitation, provisions
regarding contribution or other sharing of liability
by Bankers and an Indemnified Party) so as to give
the parties hereto, to the maximum extent permitted
by law, the intended benefits of this Section 2.
3. Proxy Statement Expenses. All costs incurred by the Trust occasioned
by the Merger, including but not limited to the preparation, printing and
mailing of the Proxy Statement and the accompanying proxy card and all other
costs incurred in connection with the solicitation of proxies, shall be paid by
Bankers.
4. Continuation of Bankers Obligations. This Agreement shall remain in
full force and effect, and Bankers' obligations hereunder shall continue with
respect to any and all Losses suffered by an Indemnified Party, notwithstanding
that Bankers has ceased to be the investment adviser of the Portfolio, or that
the Trust or the Fund has merged or consolidated with, or has sold or
transferred substantially all of its assets to another entity, or has otherwise
ceased to exist. This Agreement shall be binding upon the Bankers' successors
and assigns.
5. Governing Law. This Agreement shall be construed under and governed
by the laws of The Commonwealth of Massachusetts.
6. Severability. The provisions of this Agreement are severable and the
invalidity or unenforeability of any provision hereof shall not affect any other
provision of this Agreement.
7. Miscellaneous. The name Investment Trust is the designation of the
Trustees for the time being under an Amended and Restated Declaration dated
November 3, 1987, as amended, and all persons dealing with the Fund must look
solely to the Fund property for the enforcement of any claims against the Fund
as neither the Trustees, officers, agents nor shareholders assume any personal
liability for obligations entered into on behalf of the Fund. No Series of the
Fund shall be liable for any claims against any other Series of the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
set forth above.
INVESTMENT TRUST, on its own behalf
and on behalf of XXXXXXX S&P 500
INDEX FUND
By: /s/Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Vice President
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BANKERS TRUST COMPANY
By: /s/Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Managing Director & Counsel
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