DRAFT: AUGUST 20, 2004
INDEMNIFICATION AGREEMENT
This agreement is entered into as of ____________________, 2004
("AGREEMENT"), by and between Gartmore Mutual Funds, a Delaware statutory trust
(the "TRUST"), and the undersigned trustee and/or officer ("INDEMNITEE").
Recitals
WHEREAS, it is essential to the Trust to retain and attract as trustees
and officers the most capable persons available; and
WHEREAS, Title 12, Section 3817(a) of the Delaware Code provides that
the Trust, as a Delaware statutory trust, has the power to indemnify and hold
harmless any trustee or other person from and against any and all claims and
demands whatsoever, subject to such standards and restrictions, if any, as are
set forth in the governing instrument of the Trust; and
WHEREAS, through its Declaration of Trust, the Trust provides for the
indemnification of its trustees and officers; and
WHEREAS, the vagaries of amendments to and interpretations of legal
doctrines, statutes, and the Declaration of Trust and By-Laws of the Trust may
render uncertain the indemnification provided to the trustees and officers of
the Trust; and
WHEREAS, the board of trustees of the Trust (the "BOARD") has concluded
that such uncertainty and the continuation of present trends in litigation
against investment company trustees and officers inevitably will result in less
effective direction and supervision of the Trust's business affairs, and deems
such consequences to be so detrimental to the best interest of the Trust that it
is not only reasonable and prudent but necessary for the Trust contractually to
obligate itself to indemnify in a reasonable and adequate manner its trustees
and officers, and to establish procedures and presumptions with respect thereto
to make the process of indemnification more timely, efficient, and certain; and
WHEREAS, the Trust desires to have Indemnitee serve or continue to
serve as a trustee and/or officer for the convenience of or to represent the
interests of the Trust free from undue concern for unpredictable, inappropriate,
or unreasonable claims for damages and related costs and expenses by reason of
Indemnitee's Corporate Status (as defined below), and Indemnitee desires to
serve or continue to serve as a trustee and/or officer provided that Indemnitee
is furnished the indemnity and other rights provided for hereinafter;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which the parties hereby acknowledge, the Trust and Indemnitee do
hereby covenant and agree as follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "CHANGE IN CONTROL" means: (i) the acquisition of the Trust by
another entity, or the merger of the Trust into another entity, such that the
Trust is not the surviving entity, or the consolidation of the Trust with
another entity, or the acquisition of all or substantially all the
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assets of the Trust by another entity, unless such acquisition, merger,
consolidation or acquisition of all or substantially all the assets, of the
Trust, is completed merely for the purpose of effecting a redomestication or
reincorporation of the Trust into another business form or jurisdiction; or (ii)
the appointment of a receiver, conservator, trustee, liquidator, rehabilitator,
or any similar official for or with respect to the Trust. Notwithstanding and
without limiting the foregoing, a "Change in Control" shall include a change in
the membership of the Board that is opposed by a majority of the then-current
trustees of the Trust who are not "interested persons" of the Trust, as that
term is defined by Section 2(a)(19) of the Investment Company Act of 1940, as
amended (the "1940 ACT"), or who are "interested persons" solely by reason of
being an officer of the Trust.
(b) "CORPORATE STATUS" means the status as a trustee or officer of
the Trust of a person who is or was a trustee or officer of the Trust.
(c) "DISABLING CONDUCT" for the purposes of this Agreement means
(i) a final adjudication that an act or omission of Indemnitee, in the
performance of Indemnitee's duties as a trustee or officer of the Trust that
gave rise to the claims, issues, or matters asserted against Indemnitee in a
Proceeding, was committed in bad faith or was the result of active or deliberate
dishonesty, or that Indemnitee actually received an improper benefit in money,
property, or services, or in the case of a criminal proceeding, that Indemnitee
had reasonable cause to believe that the act or omission was unlawful; (ii) with
respect to any liability of Indemnitee to the Trust or its shareholders, a final
adjudication, or other determination in accordance with Sections 5(b) and 6
hereof, that Indemnitee, in the performance of Indemnitee's duties as a trustee
or officer of the Trust that gave rise to the claims, issues, or matters
asserted against Indemnitee in a Proceeding, engaged in willful misfeasance, bad
faith, gross negligence, or reckless disregard of Indemnitee's duties as a
trustee and/or officer of the Trust as described in Section 17(h) and (i) of the
1940 Act; or (iii) a final adjudication of any act or conduct by Indemnitee in a
Corporate Status that would make Indemnitee ineligible for service with an
investment company under Section 9(a)(1) or 9(a)(2) of the 1940 Act.
(d) "DISINTERESTED TRUSTEE" means a trustee of the Trust (i) who
is not and was not a party to the Proceeding in respect of which indemnification
or advancement of Expenses is sought by Indemnitee and (ii) who is not an
"interested person" of the Trust as that term is defined by Section 2(a)(19) of
the 1940 Act, or who is an "interested person" solely by reason of being an
officer of the Trust.
(e) "EXPENSES" means all reasonable attorneys' fees and
disbursements, retainers, court costs, transcript costs, fees and expenses of
experts, witness fees and expenses, travel expenses, duplicating costs,
computerized legal research costs, printing and binding costs, telephone,
facsimile, and other technology charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred in connection
with prosecuting, defending, or investigating, or preparing to prosecute,
defend, or investigate, or being or preparing to be a witness in, a Proceeding.
(f) "INDEMNIFIED PARTIES" means Indemnitee's spouse, Indemnitee's
heirs, the executors, administrators, and other legal representatives of
Indemnitee's estate, the beneficiaries
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of Indemnitee's estate, including without limitation any trust created by will,
and the trustees and beneficiaries thereof.
(g) "INDEPENDENT COUNSEL" for the purposes of this Agreement means
an attorney who, or a law firm the attorneys of which, is selected or appointed
in accordance with Section 5(c) hereof and which: (i) has experience in matters
of corporate governance and investment company law; (ii) at the time of
selection as Independent Counsel is not currently representing, and within two
(2) years prior to that time has not represented, the Trust, Indemnitee, or any
other party to the Proceeding with respect to which Indemnitee seeks
indemnification or advancement of Expenses, in or with respect to any legal
matter, other than serving as counsel to the Trust or to Indemnitee in
connection with the then current Proceeding or a proceeding arising from the
same or a similar set of facts that gave rise to the Proceeding; and (iii)
confirms in writing that the attorney or law firm satisfies the above criteria
and is aware of no conflict of interest or other prohibition under the
applicable standards of professional conduct prevailing at that time that would
result from or apply to the attorney's or law firm's service as Independent
Counsel with respect to such Proceeding.
(h) "PROCEEDING" means any threatened, pending, or completed
action, suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative or other hearing, or any other proceeding, whether
civil, criminal, administrative, or investigative, in which Indemnitee now or
hereafter is or was a party or is threatened to be made a party or a witness by
reason of Indemnitee's Corporate Status.
Section 2. Service by Indemnitee. Indemnitee agrees to serve
and/or continue to serve the Trust in a Corporate Status; provided however,
Indemnitee may at any time and for any reason resign from such position (subject
to any obligation under contract or by operation of law), and the Trust shall
have no obligation under this Agreement to continue Indemnitee in such position
for any period of time; provided further, following termination of Indemnitee's
service to the Trust in a Corporate Status at any time and for any reason,
whether with or without cause, Indemnitee and the Indemnified Parties shall be
entitled to all of the rights and benefits provided hereunder. The Trust
acknowledges and agrees that it has entered into this Agreement and assumed the
obligations imposed on the Trust hereunder in order to induce Indemnitee to
serve and to continue to serve in a Corporate Status, and acknowledges that
Indemnitee is relying on this Agreement in continuing to serve in such position.
Section 3. Indemnification.
(a) The Trust shall indemnify, and advance Expenses to, Indemnitee
(i) as specifically provided in this Agreement and (ii) otherwise to the fullest
extent permitted by Applicable Law (as defined below) in effect on the date
hereof and/or as amended from time to time; provided however, no change in
Applicable Law shall have the effect of reducing the rights and benefits
available to Indemnitee hereunder based on Applicable Law as in effect on the
date hereof. The rights of Indemnitee provided in this Section 3 shall include,
but shall not be limited to, the rights set forth in the other sections of this
Agreement.
(b) Indemnitee shall be entitled to the rights of indemnification
provided in this Section 3(b) if Indemnitee is or is threatened to be made a
party to a Proceeding other than a
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Proceeding by or in the right of the Trust. In accordance with this Section
3(b), the Trust shall indemnify Indemnitee for and against any and all
judgments, penalties, fines, and amounts paid in settlement, and all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with a Proceeding, to the maximum extent allowed under Delaware law
(including without limitation Title 12, Section 3817(a) of the Delaware Code)
and applicable federal securities law and regulations (including without
limitation Section 17(h) of the 1940 Act and the rules and regulations issued
with respect thereto by the U.S. Securities and Exchange Commission) (together,
"APPLICABLE LAW"), in effect as of the date of this Agreement or at the time of
the request for indemnification, whichever affords greater rights of
indemnification to Indemnitee.
(c) Indemnitee shall be entitled to the rights of indemnification
provided in this Section 3(c) if Indemnitee is or is threatened to be made a
party to any Proceeding brought by or in the right of the Trust to procure a
judgment in its favor. In accordance with this Section 3(c), the Trust shall
indemnify Indemnitee for and against any and all judgments, penalties, fines,
and amounts paid in settlement, and all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection with a Proceeding
brought by or in the right of the Trust to procure a judgment in its favor, to
the maximum extent allowed under Applicable Law in effect as of the date of this
Agreement or at the time of the request for indemnification, whichever affords
greater rights of indemnification to Indemnitee.
(d) In addition to the indemnification provided under Sections
3(b) and 3(c) hereof, the Trust shall indemnify Indemnitee for and against any
and all judgments, penalties, fines, and amounts paid in settlement, and all
Expenses actually and reasonably incurred by or on behalf of Indemnitee in
connection with any Proceeding to which Indemnitee is made a party and with
respect to which Indemnitee is successful, in whole or in part, on the merits or
otherwise, in a final determination or result; provided however, if Indemnitee
is successful on the merits or otherwise, as to one or more but less than all
claims, issues, or matters in such Proceeding, the Trust shall indemnify
Indemnitee against any and all judgments, penalties, fines, and amounts paid in
settlement, and all Expenses actually and reasonably incurred by or on behalf of
Indemnitee in connection with each successfully resolved claim, issue, or matter
in the Proceeding. For purposes of this Section 3 and without limitation, the
termination of any claim, issue, or matter in such a Proceeding in favor of
Indemnitee (i) by dismissal, summary judgment, judgment on the pleadings, or
final judgment, with or without prejudice, or (ii) by agreement without any
payment or assumption or admission of liability by Indemnitee, shall be deemed a
successful determination or result with respect thereto. Also for purposes of
this Section 3 and without limitation, the termination of an investigation in a
Proceeding (i) that gives rise to no further claim, issue, or matter in such
Proceeding against Indemnitee or (ii) that gives rise to a claim, issue, or
matter in such Proceeding that is successfully resolved as provided in this
Section 3(d) shall be deemed a successful determination or result with respect
thereto.
(e) Notwithstanding any other provision of this Agreement to the
contrary, the Trust shall indemnify Indemnitee for and against all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with any Proceeding to which Indemnitee is or is threatened to be
made a witness but not a party, within fifteen (15) days after receipt by the
Trust of each statement of Expenses from Indemnitee with respect thereto.
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(f) Notwithstanding any other provision of this Agreement to the
contrary, the Trust shall not be liable for indemnification hereunder in
connection with: (i) any monetary settlement by or judgment against Indemnitee
for xxxxxxx xxxxxxx or disgorgement of profits by Indemnitee pursuant to Section
16(b) of the Securities Exchange Act of 1934, as amended; or (ii) any liability
to the Trust or its shareholders with respect to a Proceeding (other than a
proceeding under Section 7(a) hereof, under circumstances in which Indemnitee
shall be entitled to payment or reimbursement under Section 7(f) hereof), to
which Indemnitee otherwise would be subject by reason of Disabling Conduct by
Indemnitee.
Section 4. Advancement of Expenses.
(a) Indemnitee shall be entitled to the rights of advancement of
Expenses provided in this Section 4(a) if Indemnitee is or is threatened to be
made a party to or a witness in a Proceeding. In accordance with this Section
4(a), the Trust shall advance all Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding to which Indemnitee is or is
threatened to be made a party or a witness, to the maximum extent allowed under
Applicable Law in effect as of the date of this Agreement or at the time of a
request for advancement of Expenses, whichever affords greater rights of
advancement of Expenses to Indemnitee.
(b) To receive advancement of Expenses in accordance with Section
4(a) hereof, Indemnitee, at any point prior to, during, or following termination
of a Proceeding, shall submit to the Secretary of the Trust a notice and
statement of Expenses, which: (i) shall reasonably evidence the Expenses
incurred by or on behalf of Indemnitee in connection with the Proceeding; (ii)
shall include or be preceded or accompanied by a written affirmation of
Indemnitee's good faith belief that Indemnitee's conduct that gave rise to the
claims, issues, or matters asserted against Indemnitee in the Proceeding meets
the standard of conduct necessary for indemnification by the Trust in accordance
with Sections 3, 5, and 6 hereof, and a written undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it shall ultimately be determined
that Indemnitee is not entitled to indemnification hereunder; and (iii) shall
specify whether any determination with respect thereto that may be made in
accordance with Sections 4(c) and (d) hereof shall be made by the Board or by
Independent Counsel. The Secretary of the Trust, promptly upon receipt of a
notice and statement of Expenses, shall advise the Board in writing that
Indemnitee has requested advancement of Expenses.
(c) Indemnitee shall be entitled to advancement of Expenses in
connection with a Proceeding in accordance with Sections 4(a) and (b) hereof
only if: (i) the Trust is insured against losses arising by reason of the
Trust's lawful advancement of such Expenses (in which event the remaining
provisions of this Section 4(c) shall not apply with respect thereto); or (ii)
Indemnitee gives adequate security to the Trust for the undertaking to repay
such amounts; or (iii) a determination is made by a majority vote of a quorum of
Disinterested Trustees or by the written legal opinion of Independent Counsel
that there is a basis for a reasonable belief that Indemnitee ultimately will be
found entitled to indemnification for and with respect to the Proceeding, or the
claims, issues, or matters with respect thereto for which Indemnitee seeks
advancement of Expenses.
(d) A determination in accordance with Section 4(c)(iii) hereof
shall be made in accordance with the standards and presumptions in Sections 3
and 6 hereof, in a resolution
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adopted by a majority of a quorum of the Board consisting of Disinterested
Trustees or, at Indemnitee's option, by Independent Counsel selected or
appointed in accordance with Section 5(c) hereof, in a written opinion submitted
to the Board, a copy of which shall be delivered to Indemnitee.
(e) If Indemnitee is entitled to advancement of Expenses in
accordance with Sections 4(a) through (d) hereof, the Trust shall pay or
reimburse Indemnitee for all Expenses for which a notice and statement of
Expenses is submitted in accordance with Section 4(b) hereof, within fifteen
(15) days (i) after receipt by the Trust of the notice and statement of
Expenses, if Section 4(c)(i) applies thereto; (ii) after Indemnitee gives
adequate security to the Trust for the undertaking to repay such amounts, if
Section 4(c)(ii) applies thereto; or (iii) after a determination is made in
accordance with Section 4(c)(iii), if that Section applies thereto.
Section 5. Indemnification Procedure; Payment; Cooperation.
(a) To obtain indemnification hereunder, Indemnitee shall submit a
notice to the Secretary of the Trust that identifies the Proceeding and/or the
claims, issues, or matters with respect thereto for which indemnification is
sought, and that specifies whether any determination with respect thereto that
may be made in accordance with Section 5(b) hereof shall be made by the Board or
Independent Counsel. The Secretary of the Trust, promptly upon receipt of such a
request for indemnification, shall advise the Board in writing that Indemnitee
has requested indemnification.
(b) Upon submission of a notice by Indemnitee in accordance with
Section 5(a) hereof, a determination of Indemnitee's entitlement to
indemnification shall be made as follows:
(1) Indemnitee shall be entitled to indemnification
hereunder without a separate determination by or on behalf of the Trust, with
respect to any Proceeding and/or any claim, issue, or matter with respect
thereto: (i) which is resolved by agreement without any payment or assumption or
admission of liability by Indemnitee; or (ii) as to which a final decision on
the merits has been made by the court or other body with jurisdiction over the
Proceeding, in which Indemnitee was determined not to be liable with respect to
such claim, issue, or matter asserted against Indemnitee in the Proceeding or
was determined not to have engaged in any Disabling Conduct that gave rise to
any liability; or (iii) as to which a court or arbitrator determines upon
application that, despite such a determination of liability on the part of
Indemnitee, but in view of all the circumstances of the Proceeding and of
Indemnitee's conduct in a Corporate Status with respect thereto, Indemnitee is
fairly and reasonably entitled to indemnification for such judgments, penalties,
fines, amounts paid in settlement, and Expenses as such court or arbitrator
shall deem proper; provided however, such decision shall have been rendered in
or with respect to the Proceeding for which the Indemnitee seeks indemnification
under this Agreement.
(2) If Section 5(b)(1) hereof does not apply and a Change
in Control shall have occurred, Indemnitee shall be entitled to indemnification
unless a reasonable determination is made, in accordance with the standards and
presumptions in Sections 3 and 6 hereof, that the Trust is prohibited by
Applicable Law from providing the requested indemnification. The determination
shall be made, at Indemnitee's sole option, either: (i) by the Board in a
resolution
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adopted in accordance with Section 5(b)(3) hereof; or (ii) by Independent
Counsel in a written opinion submitted to the Board, a copy of which shall be
delivered to Indemnitee.
(3) If neither Section 5(b)(1) nor Section 5(b)(2) hereof
applies and a Change in Control has not occurred, Indemnitee shall be entitled
to indemnification unless a reasonable determination is made, in accordance with
the standards and presumptions in Sections 3 and 6 hereof, that the Trust is
prohibited by Applicable Law from providing the requested indemnification. The
determination shall be made either in a resolution adopted by the vote of a
majority of a quorum of the Board consisting of Disinterested Trustees or, if
such a quorum is not obtainable or even if obtainable but such quorum so
directs, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee; provided however, the Trust shall
provide notice to Indemnitee within thirty (30) days following receipt of notice
from Indemnitee in accordance with Section 5(a) hereof, if the Board directs
that such determination shall be made by Independent Counsel.
(c) Independent Counsel shall be selected to make a determination
of Indemnitee's entitlement to indemnification or advancement of Expenses as
follows:
(1) Indemnitee initially may select one or more but not
more than five alternate attorneys or law firms who satisfy the criteria in
Section 1(g) hereof, by providing notice of such selection, together with the
written confirmation provided for in Section 1(g)(iii) hereof, for each such
attorney or law firm, to the Secretary of the Trust, who shall promptly deliver
copies of the notice to all members of the Board.
(2) The Trust, by a vote of a majority of a quorum of the
Board consisting of Disinterested Trustees (or, if such a quorum cannot be
obtained, then by a majority vote of a committee of the Board consisting solely
of two or more trustees who are not at the time parties to the Proceeding and
who were duly designated to act in the matter by a majority vote of a quorum of
the Board, in which trustees who are parties to the Proceeding may participate;
or, if such a committee cannot be designated, then by a majority vote of a
quorum of the Board, in which trustees who are parties to the Proceeding may
participate), may reject one or more of the attorneys or law firms selected by
Indemnitee for cause, which shall be limited to a showing by the Trust that such
attorney or law firm fails to satisfy one or more of the criteria in Section
1(g) hereof; provided however, the Trust may reject for cause a law firm (or an
attorney associated therewith) that has an AV rating by Martindale Xxxxxxx Law
Directory and fifty (50) or more attorneys only on the basis that the Trust has
shown that the attorney or law firm fails to satisfy the criteria in Section
1(g)(i), (ii), or (iii) hereof.
(3) The Trust shall provide notice to Indemnitee, within
thirty (30) days following receipt of Indemnitee's notice of selection in
accordance with Section 5(c)(1) hereof, stating as to each attorney or law firm
listed therein either that the Trust does not object or that the Trust rejects
such selection for cause in accordance with Section 5(c)(2) hereof, and stating
the grounds therefore and providing a copy of the resolution of the Board
evidencing such rejection. The Trust will be deemed not to object to any
attorney or law firm initially selected by Indemnitee as to whom the Trust does
not provide timely notice of rejection in accordance herewith.
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(4) In the event the Trust, in accordance with Sections
5(c)(2) and (3) hereof, timely rejects for cause each of the attorneys or law
firms initially selected by Indemnitee: (i) Indemnitee may select one or more
but no more than five additional alternate attorneys or law firms in accordance
with Section 5(c)(1) hereof, which selection shall be subject to the Trust's
right of rejection for cause in accordance with Section 5(c)(2) hereof.
(5) Upon receipt of notice that the Trust does not object
to one or more attorneys or law firms initially selected by Indemnitee in
accordance with Sections 5(c)(1) through (4) hereof, Indemnitee shall confirm
the selection of one such attorney or law firm as Independent Counsel in a
notice to the Secretary of the Trust.
(6) In the event a final selection of Independent Counsel
has not occurred in accordance with Sections 5(c)(1) though (5) hereof, and upon
receipt of a demand in a notice from Indemnitee, the Trust shall immediately
institute an action in an appropriate court of the [STATE OF OHIO] with
jurisdiction over the matter, naming Indemnitee as a party thereto, and shall
petition said court to appoint as Independent Counsel an attorney or law firm
who satisfies the criteria in Section 1(g) hereof, giving preference to the
greatest extent possible to attorneys or law firms initially selected by
Indemnitee in accordance with this Section 5(c), which selection shall be
binding on Indemnitee and the Trust. In any such court action, the Trust shall
take all necessary steps to expedite a determination by the court, and shall
have the burden of proof and persuasion to show, by clear and convincing
evidence, that rejection for cause in accordance with Section 5(c)(2) hereof is
warranted as to each of the attorneys or law firms initially selected by
Indemnitee. The Trust shall pay all attorneys' fees, costs, and expenses
incurred by the Trust and/or by Indemnitee in connection with any such court
action.
(d) Upon the selection or appointment of Independent Counsel in
accordance with Section 5(c) hereof, the Trust: (i) shall execute such retention
agreement as Independent Counsel reasonably may require; and (ii) shall pay all
retainers, fees, and expenses charged by Independent Counsel for or in
connection with services provided in that capacity, within ten (10) days
following receipt of an itemized statement for the same; provided however,
Independent Counsel shall not be deemed to be disqualified from serving as such
by virtue of the Trust's compliance with this provision.
(e) Indemnitee and the Trust shall cooperate with the person(s)
making a determination of Indemnitee's entitlement to indemnification, including
providing to such person(s) upon any reasonable advance request, any
documentation or information that is not privileged and which is reasonably
available to Indemnitee or the Trust and reasonably necessary to such
determination; provided however, any and all documents or information provided
in response to such request that are deemed confidential by the submitting party
shall be held and used by the recipient on a confidential basis, and shall not
be disclosed other than to the Trust or Indemnitee or used for any purpose other
than to make such determination, except by order of court or in response to a
subpoena or other compulsory process; provided further the failure of Indemnitee
to provide such assistance shall not limit or otherwise affect Indemnitee's
right to indemnification or advancement or payment of Expenses hereunder in
connection with a specific Proceeding unless, and only to the extent, such
failure is shown by the Trust to have caused actual prejudice to the Trust with
respect thereto. Any costs or expenses (including reasonable attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the person(s)
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making such determination shall be paid directly by or reimbursed by the Trust,
irrespective of the determination as to Indemnitee's entitlement to
indemnification.
(f) If Indemnitee is determined to be entitled to indemnification
in accordance with Section 5(b) hereof, or is deemed to be entitled to
indemnification in accordance with Section 6(b) hereof, the Trust, within thirty
(30) days after such determination: (i) shall pay all judgments, penalties,
fines, amounts paid in settlement, and Expenses for which Indemnitee seeks
indemnification and which have not already been paid or advanced by the Trust;
(ii) shall provide Indemnitee with written evidence of satisfaction of such
obligations; and (iii) shall issue a written release to Indemnitee with respect
to any undertaking previously provided by Indemnitee in accordance with Section
4(b) hereof to repay Expenses advanced by the Trust. The Trust shall pay any and
all additional amounts for which Indemnitee is entitled to indemnification
within thirty (30) days after such amounts become due and payable.
Section 6. Presumptions and Effect of Certain Proceedings.
(a) Any person(s) making a determination of whether Indemnitee is
entitled to indemnification or advancement of Expenses hereunder: (i) shall do
so based on a rebuttable presumption that Indemnitee is entitled to
indemnification or advancement of Expenses hereunder, that Indemnitee has not
engaged in Disabling Conduct, that Indemnitee's actions in a Corporate Status
were based on Indemnitee's determination that those actions were in the best
interests of the Trust, and that no other controlling standard applies that
would prohibit the Trust under Applicable Law from providing indemnification or
advancement of Expenses under the standard in Sections 3 or 4 hereof; and (ii)
shall require that, to overcome such presumption and to make any 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 under the standard in
Sections 3 or 4 hereof, either due to Disabling Conduct that gave rise to the
claim, issue, or matter for which indemnification or advancement of Expenses is
sought and which is asserted against Indemnitee in the Proceeding, or based on
application of another controlling standard that is recognized by Applicable Law
and which is shown to apply with respect to the request for indemnification or
advancement or Expenses.
(b) In the event the Board is required to make a determination of
Indemnitee's entitlement to indemnification or advancement of Expense in
accordance with Sections 4(d), 5(b)(2), or 5(b)(3) hereof, but does not provide
notice to Indemnitee of such determination within the later of (i) forty-five
(45) days after receipt by the Trust of Indemnitee's notice in accordance with
Sections 4(b) and/or 5(a) hereof, or (ii) with respect to a request for
indemnification, thirty (30) days after Indemnitee substantially complies with a
request for information in accordance with Section 5(e) hereof, Indemnitee will
be deemed to be entitled to such indemnification or advancement of Expenses,
absent a prohibition under Applicable Law against providing indemnification or
advancement of Expenses on this basis.
(c) Notwithstanding any other provision of this Agreement to the
contrary, the termination of any Proceeding, or of any claim, issue, or matter
related thereto, by judgment, order or settlement in which Indemnitee is found
to have engaged in Disabling Conduct shall be deemed a sufficient ground (i) to
deny a request for indemnification or advancement of Expenses
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submitted in accordance with this Agreement, and (ii) to create a presumption
that Indemnitee engaged in Disabling Conduct and, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's
conduct was unlawful.
(d) Except as otherwise expressly provided in this Agreement, the
termination of any Proceeding, or of any claim, issue, or matter related
thereto, by judgment, order, settlement, or conviction, or of any plea of nolo
contendere or its equivalent, shall not be deemed a sufficient ground (i) to
deny a request for indemnification or advancement of Expenses submitted in
accordance with this Agreement, or (ii) to create a presumption that Indemnitee
engaged in Disabling Conduct or is not entitled to indemnification or
advancement of Expenses based on application of another controlling standard
which is recognized by Applicable Law, or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's
conduct was unlawful.
Section 7. Remedies of Indemnitee.
(a) Indemnitee may institute an action in an appropriate court of
the [STATE OF OHIO], or in any other court of competent jurisdiction, to enforce
Indemnitee's rights to indemnification or payment or advancement of Expenses
hereunder, and/or to obtain a declaration of Indemnitee's entitlement to
indemnification or advancement of Expenses hereunder, upon the happening of any
one or more of the following events: (i) a determination is made in accordance
with Section 5 hereof that Indemnitee is not entitled to indemnification; (ii) a
determination is made in accordance with Section 4 hereof that Indemnitee is not
entitled to advancement of Expenses, or advancement of Expenses is not made
within the time provided therein; (iii) payment of indemnification is not made
in accordance with Section 5(f) hereof within the time provided therein; (iv)
payment of indemnification is not made in accordance with Section 3(e) hereof
within the time provided therein; or (v) at any other time that Indemnitee is
threatened by a loss of any right hereunder, or by the Trust's failure to
perform its obligations in accordance herewith. Alternatively, Indemnitee, at
Indemnitee's sole option, may seek an award in arbitration to enforce such
rights and/or obtain such declaration, which shall be conducted by a single
arbitrator in accordance with the Commercial Arbitration Rules of the American
Arbitration Association at a location selected by Indemnitee (or, if Indemnitee
makes no selection, at a location determined in accordance with such rules).
(b) If a determination shall have been made in accordance with
Section 4 hereof that Indemnitee is not entitled to advancement of Expenses, or
in accordance with Section 5 hereof that Indemnitee is not entitled to
indemnification, any judicial or arbitration proceeding commenced in accordance
with this Section 7 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 Indemnitee's right to indemnification or advancement of
Expenses.
(c) If a determination has been made or deemed to have been made
in accordance with Sections 4, 5, and 6 hereof that Indemnitee is entitled to
indemnification or advancement of Expenses, the Trust shall be bound by such
determination in any judicial or arbitration proceeding commenced in accordance
with this Section 7, unless the court or arbitrator rules that entry of an order
requiring indemnification or advancement of Expenses on the basis of this
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provision is prohibited by Applicable Law in effect at the date of this
Agreement or at the time of such ruling, whichever affords greater rights of
indemnification or advancement of Expenses to Indemnitee.
(d) The Trust and Indemnitee shall be precluded from asserting in
any judicial or arbitration proceeding commenced in accordance with this Section
7 that the procedures and presumptions of this Agreement are not valid, binding,
and enforceable, and shall stipulate in any such proceeding that the Trust and
Indemnitee are bound by all the provisions of this Agreement.
(e) If Indemnitee institutes a judicial or arbitration proceeding
to enforce or declare 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
actually and reasonably incurred by Indemnitee in such proceeding (including any
appeal therefrom or other court proceeding to enforce an arbitrator's ruling and
award), but only if Indemnitee substantially prevails therein; provided however,
if it is determined in such a proceeding that Indemnitee is entitled to receive
part but not all of the indemnification or advancement of Expenses sought, the
Trust shall pay a portion of the Expenses incurred by Indemnitee in connection
with such proceeding, prorated based on the percentage of Expenses awarded to
Indemnitee, or the percentage of claims, issued, or matters as to which
indemnification or advancement of Expenses is awarded to Indemnitee, whichever
is more favorable to Indemnitee.
(f) The Trust shall pay or reimburse Indemnitee for all Expenses
to which Indemnitee is entitled in accordance with Section 7(e) hereof
(including all such Expenses incurred in connection with any appeal therefrom or
other court proceeding to enforce an arbitrator's ruling and award), within
fifteen (15) days following the later of (i) entry of a final judgment by the
trial court or a final ruling by the arbitrator or (ii) receipt by the Trust of
each notice and statement of Expense with respect thereto; provided however, any
such payment of Expenses shall be subject to Indemnitee's written undertaking in
accordance with Section 4(b) hereof to repay any Expenses advanced if it shall
ultimately be determined that Indemnitee is not entitled to indemnification
hereunder or, as described in Section 3(d) hereof, if Indemnitee is not wholly
successful.
Section 8. Non-Exclusivity; Insurance; Subrogation.
(a) Indemnitee's rights of indemnification and advancement of
Expenses hereunder 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 and Bylaws of the Trust, any other agreement, any insurance policy, a vote
of shareholders, a resolution of the Board, or otherwise. No amendment,
alteration, or repeal of this Agreement or of any provision hereof shall limit
or restrict any right of Indemnitee hereunder with respect to any action taken
or omitted by Indemnitee in a Corporate Status prior to such amendment,
alteration, or repeal.
(b) To the extent that the Trust maintains liability insurance for
trustees and officers 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
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Indemnitee is no longer serving in a Corporate Status for acts and omissions
while serving in such Corporate Status), for any such trustee or officer 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.
Section 9. Duration of Agreement. All agreements and obligations
of the Trust as provided in this Agreement shall continue during the period
Indemnitee serves in a Corporate Status and thereafter for such time as
Indemnitee is, may be, or is threatened to be made a party to or a witness in a
Proceeding, or a judicial or arbitration proceeding commenced by Indemnitee in
accordance with Section 7 hereof.
Section 10. Binding Effect; Assumption of Liability; Limitation of
Actions and Release of Claims. This Agreement shall be binding upon the Trust,
its successors and assigns, shall continue as to Indemnitee after termination of
Indemnitee's service to the Trust in a Corporate Status, and shall inure to the
benefit of Indemnitee and any and all Indemnified Parties.
Section 11. 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 of the remaining
provisions of this Agreement (including, without limitation, each other
provision of any section of this Agreement containing a provision or provisions
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 other provision of any section of this
Agreement containing a provision or provisions 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 12. Assignment. The parties hereto may assign their rights,
and delegate their obligations, hereunder, without the consent of the other
party, but no such delegation of obligations shall relieve the delegating party
of the obligations created hereunder, except that the Trust may delegate,
without consent, its obligations hereunder and shall be relieved of its
obligations hereunder in connection with a redomestication of the Trust or in
connection with a reorganization of the Trust in which all or substantially all
of the Trust's assets and liabilities are acquired by another entity.
Section 13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original for all
purposes 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. The
parties agree to accept copies of the executed originals of this Agreement, and
of any notice provided in accordance herewith, as and in place of such
originals.
Section 14. Headings and Recitals. The headings of the sections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or
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to affect the construction thereof. The recitals set forth above shall be
construed as substantive in nature, and are an integral part of this Agreement.
Section 15. Modification and Waiver. No supplement, modification,
or amendment of this Agreement shall be binding unless in writing executed by
both the Trust and Indemnitee. 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.
Section 16. 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 or by courier service and receipted for by
or on behalf of the party to whom said notice or other communication shall have
been directed, (ii) delivered by facsimile or e-mail, or (iii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed, as follows:
(a) If to Indemnitee, to the last known address, facsimile number,
or e-mail address for Indemnitee in the records of the Trust,
and to the address, facsimile number, or e-mail address set
forth below the signature line for Indemnitee at the end of
this Agreement, with a copy to:
______________________________
______________________________
______________________________
Telephone: ___.___.___
Facsimile: ___.___.___
E-Mail: __________@__________
(b) If to the Trust, to the then-current facsimile number or
e-mail address for the Secretary of the Trust or to:
Xxxx X. Xxxxxx
River Park 2
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-Mail: xxxxxx00@xxxxxxxx.xx
with a copy to:
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-Mail: xxxxxxx@xxxxxxxx.xx
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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, in a notice delivered in
accordance with this Section 16.
Section 17. Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Delaware,
without regard to the choice of law or conflicts of law principles thereof.
Section 18. Miscellaneous. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors. The Trust is a Delaware statutory trust formed under Title 12,
Chapter 38 of the Delaware Code; by a Declaration of Trust dated as of [_____],
2004 (including any and all amendments thereto hereafter filed); and by a
Certificate of Trust dated as of [_____], 2004 (including any and all amendments
thereto hereafter filed), a copy of which is on file at the office of the
Secretary of State of Delaware. The obligations of the Trust entered into in the
name of on behalf thereof by any of the Trust's trustees, officers, employees,
or agents are not made individually, but only in their capacities with respect
to the Trust. Such obligations are not binding upon any of the trustees,
officers, or shareholders of the Trust personally, but bind only the assets of
the Trust, as set forth in Title 12, Section 3803 of the Delaware Code.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
INDEMNITEE: FOR THE TRUST:
GARTMORE MUTUAL FUNDS
By:__________________________________ By:____________________________________
Printed Name:________________________ Printed Name:__________________________
Address:_____________________________ Title:_________________________________
_____________________________________
Facsimile:___________________________
E-Mail:______________________________
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