FORM OF INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the 10th day of August, 2004, among the One
Group(R) Mutual Funds ("OGMF"), each of the XX Xxxxxx Funds listed in Exhibit
A ("JPM Funds") (together with the OGMF, the "Existing Funds") and JPMorgan
Chase & Co. ("Company").
WITNESSETH:
WHEREAS, Bank One Corp. and JPMorgan Chase & Co. completed their merger
on or about July 1, 2004 ("Merger"); and
WHEREAS, following the Merger, it is currently contemplated that the
OGMF and the JPM Funds will seek to integrate fully their businesses so that
the two fund families are treated for all purposes as a single fund complex;
and
WHEREAS, in order to integrate fully the two fund families into a single
fund complex, it is expected that each of the boards of directors/trustees of
the Existing Funds will be asked to consider, among other things, (1) the
redomiciliation and redomestication of the Existing Funds into new investment
companies registered under the Investment Company Act of 1940 having the same
or substantially the same organizational documents, policies and procedures
("Successor Entities" and collectively with the Existing Funds, the "Funds"),
and (2) the merger of individual series of each of the Existing Funds in
order to reduce any redundancies in the investment products offered by the
Successor Entities and reduce confusion among investors regarding the
investment products offered; and
WHEREAS, the Company has determined that, in connection with integration
of the two fund families into a single fund complex (including the individual
mergers of series of the Existing Funds), it may be necessary for the Company
to provide written assurance to the boards of directors/trustees of the Funds
that the Company is prepared to indemnify the Funds and to hold them harmless
and to protect the shareholders against dilution of their respective
interests in the Funds during the term of this Agreement against certain
Claims, as defined herein, in the event that the insurance coverage provided
to the Funds under past and current directors and officers liability
insurance polices, as well as under such directors and officers liability
insurance policies as may (at the sole discretion of the Funds' Boards of
Directors/Trustees) be in effect for the Funds in the future (collectively,
the "Policies") is not available (for example, because the applicable limits
of the Policies have been exhausted or because Claims for payment under the
Policies have been denied or are subject to applicable deductibles under the
Policies); and
WHEREAS, the Company does not desire to provide indemnification to the
Funds in connection with any Loss, as defined herein, suffered by the Funds
that is covered by the Policies, but rather desires to provide
indemnification to the Funds and to hold them harmless only in connection
with any Loss, as defined herein, suffered by the Funds for which coverage is
not provided under the Policies and that is a Loss that would be permitted to
be indemnified by the Funds under all applicable laws and for which
indemnification is not prohibited as a result of any applicable order or
decree issued by any governing regulatory authority or court of competent
jurisdiction.
NOW THEREFORE, the Company and the Funds agree as follows:
1. Definitions.
(a) "CLAIM" means any written demand received by the Funds or their
officers, directors and/or trustees for monetary damages, any formal
investigation initiated against the Funds or their officers, directors,
investment advisers, distributors and/or trustees by the filing of charges or
a formal investigative order, or any civil or criminal proceeding initiated
against the Funds or their officers, directors, investment advisers,
distributors and/or trustees relating to any Wrongful Act or alleged Wrongful
Acts, including any Interrelated Wrongful Act, underlying or alleged therein.
(b) "CLAIM EXPENSES" mean any reasonable and necessary fees, costs,
and expenses resulting from the investigation, adjustment, defense or appeal
of a "Claim" (including the cost of appeal bonds), and any reasonable and
necessary fees charged by any lawyer designated by the Funds;
(c) "COMPANY" shall have the same meaning as set forth in the preamble
to this Agreement.
(d) "EXISTING FUNDS" shall have the same meaning as set forth in the
preamble to this Agreement.
(e) "FUNDS" shall have the same meaning as set forth in the preamble
to this Agreement.
(f) "JPM FUNDS" shall have the same meaning as set forth in the
preamble to this Agreement.
(g) "INTERRELATED WRONGFUL ACTS" means all "Wrongful Acts" which are
logically or causally connected by reason of any fact, circumstance,
situation, event, transaction or cause or series of logically or causally
connected facts, circumstances, situations, events, transactions or causes.
(h) "LOSS" means any "Claim Expenses", monetary judgments and
settlements, including damages, taxes, fines, or penalties.
(i) "MERGER" shall have the same meaning as set forth in the preamble
to this Agreement.
(j) "OGMF" shall have the same meaning as set forth in the preamble to
this Agreement.
(k) "POLICIES" shall have the meaning set forth in the preamble to
this Agreement.
(l) "SUCCESSOR ENTITIES" shall have the same meaning as set forth in
the preamble to this Agreement.
(m) "WRONGFUL ACT" means any actual or alleged act, error, omission,
neglect, misstatement, misleading statement, breach of duty, or other act
wrongfully done or attempted to be committed by the Funds and/or their
officers and directors/trustees arising directly or indirectly as a result of
any activities of the Funds, their officers or directors and/or trustees, the
Company, Bank One Corp. or their affiliates, provided that any such act,
error, omission, neglect, misstatement, misleading statement, breach of duty,
or other act wrongfully done or attempted to be committed by the Funds and/or
their officers and directors/trustees would be permitted to be indemnified by
the Funds under the federal securities laws and any other applicable laws,
and under any applicable order or decree of the United States Securities and
Exchange Commission or any other governing regulatory authority or court of
competent jurisdiction.
2. Claims.
The Company agrees to indemnify the Funds for, and to pay on the Funds'
behalf, any Loss for which the Funds shall become legally obligated to pay
resulting from any Claims made against them prior to or during the Term of
this Agreement resulting from any Wrongful Act or alleged Wrongful Act,
including any Interrelated Wrongful Act, underlying or alleged therein, that
are alleged to have occurred prior to July 1, 2004. The Company's obligation
to indemnify the Funds for Losses pursuant to this Section 2 shall arise only
in the absence of coverage under the Policies and shall therefore apply only
to that portion of any Loss suffered by the Funds that is not within the
coverage provided under the Policies for any reason other than the existence
of this Agreement. The Company shall not be liable under this Agreement to
make any payment of amounts that might otherwise be indemnifiable under this
Agreement if and to the extent any such payment would be: (a) covered under
the Policies, (b) in violation of any applicable law, or (c) otherwise not
permitted to be made by the Funds as a result of any applicable order or
decree issued by any governing regulatory authority or court of competent
jurisdiction.
3. Term of the Agreement.
The term of this Agreement shall commence on July 1, 2004 and shall be six
years from that date ("Term"). The indemnification coverage that may be
provided under this Agreement shall apply only to Claims made for any
Wrongful Act or alleged Wrongful Act, including any Interrelated Wrongful
Act, that are alleged to have occurred prior to July 1, 2004. The Company
shall have no obligation to indemnify the Funds for any Claims made
subsequent to the Term of this Agreement.
4. Notice of Claims, Defense of Claims and Subrogation of Rights.
(a) The Funds hereby agree to advise the Company promptly in writing
of all Claims outstanding against the Funds as of July 1, 2004, and all
Claims made against the Funds during the Term of this Agreement. In
addition, the Funds hereby agree to provide the Company with notice within
fifteen (15) days, of:
(i) the exhaustion by all payments under all applicable limits
of liability with respect to the Policies;
(ii) any notice received from any insurance carrier that
coverage of any Claim or payment of any Claim Expenses is being denied in
whole or in part under the Policies;
(iii) any Claim made against the Funds for which the Funds seek
indemnification under this Agreement upon the occurrence of (i) or (ii).
(b) No obligation shall arise on the part of the Company under this
Agreement until notice is provided via fax, e-mail, U.S. mail or courier to
the following address: Office of the General Counsel, JPMorgan Chase & Co.,
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000. Attention: Xxxx Xxxxxxxxxxxx.
Written notice must include any and all documents received by the Funds or
their representatives at the time a Claim is first made against the Funds.
(c) Upon notification of a Claim for which indemnification is sought
under this Agreement, the Company shall have the option to participate with
any Fund seeking indemnification under this Agreement in the defense of such
Claim. Any Fund seeking indemnification shall in no case confess any Claim or
make any compromise in any case in which the Company would be required to
indemnify it, except with the Company's prior written approval.
(d) When any Fund seeks indemnification under this Agreement, no
obligation shall arise on the part of the Company to make any indemnification
payment or otherwise take any action until the Fund seeking indemnification
has exhausted all reasonable efforts that may be requested by the Company, up
to and including the commencement of litigation, to obtain coverage of any
and all Claims for which payment is sought by the Fund under the Policies.
The Fund seeking indemnification shall cooperate in all reasonable respects
with any efforts of the Company to obtain coverage of any and all Claims for
which payment is sought by any Fund under the Policies, including the pursuit
of litigation in the name of the Fund.
(e) If the Company indemnifies any Fund for any Loss, the Company
shall be subrogated to any rights or defenses that the Fund may have with
respect to any Claims that may have given rise to such Loss.
5. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns, provided that neither
this Agreement nor any right hereunder may be assigned by any party without
the written consent of the Funds and the Company.
6. Miscellaneous.
(a) This Agreement may be modified or amended only by an agreement in
writing signed by the Company and the Funds. No waiver of any term or
provision hereof shall be effective unless in writing signed by the party
waiving such term or provision.
(b) This Agreement may be executed in two or more counterparts, and
with counterpart signature pages, all of which taken together shall
constitute one and the same agreement, and either of the parties hereto may
execute this Agreement by signing any such counterpart.
(c) Any headings herein are inserted for convenience of reference only
and shall be ignored in the construction or interpretation hereof.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to the choice of law
provisions thereof.
(e) If any provision of this Agreement is unenforceable or illegal,
such provision shall be enforced to the fullest extent permitted bylaw and
the remainder of the Agreement shall continue in full force and effect.
(f) This Agreement constitutes the entire agreement between the
parties concerning the subject matter of the Agreement, and it supersedes all
prior communications, understandings or agreements, whether written or oral,
concerning this subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
written above.
ONE GROUP(R) MUTUAL FUNDS
By:
-------------------
Name:
Title:
XX XXXXXX FUNDS (with respect to the series listed on Exhibit A)
By:
-------------------
Name:
Title:
X.X. XXXXXX XXXXX & CO.
By:
-------------------
Name:
Title.
EXHIBIT A: XX XXXXXX FUNDS
X.X. Xxxxxx Funds (JPMF)
X.X. Xxxxxx Mutual Fund Trust (JPMMFT) X.X. Xxxxxx Institutional Funds (JPMIF)
X.X. Xxxxxx Mutual Fund Select Group (JPMMFSG)
X.X. Xxxxxx Series Trust (JPMST)
X.X. Xxxxxx Mutual Fund Select Trust (JPMMFST)
X.X. Xxxxxx Mutual Fund Series (JPMMFS)
X.X. Xxxxxx Mutual Fund Group (JPMMFG)
Growth and Income Portfolio (GIP)
X.X. Xxxxxx Xxxxxxx Mutual Fund Group, Inc. (JPMFMFG)
X.X. Xxxxxx Mutual Fund Investment Trust (JPMFIT)
