Exhibit (h) 10.1
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of January 14, 2003, among AMBAC
ASSURANCE CORPORATION ("Ambac"), ▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT COMPANY
(the "Adviser"), ▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT COMPANY (the "Trust") on behalf of its
series ▇▇▇▇▇▇▇ MULTI-MANAGER PRINCIPAL PROTECTED FUND (the "Fund"), ▇▇▇▇▇▇▇ Fund
Distributors, Inc. (the "Distributor").
Section 1. Definitions. For purposes of this Agreement, the following terms
have the meanings provided below:
"Affiliate" means any Person that, through ownership of shares,
agreement or otherwise, controls, is controlled by or is under common
control with, another Person.
"Agreement" means this Indemnification Agreement, as amended from time
to time.
"Ambac Information" means the four paragraphs appearing in the
Prospectus under the heading "Ambac Assurance Corporation" and the
financial statements of Ambac incorporated by reference in the Registration
Statement (which financial statements are contained in the periodic reports
of Ambac Financial Group, Inc. ("AFG") filed under the Securities Exchange
Act of 1934, as amended (the "1934 Act")). If Ambac's financial statements
cease to be filed as part of AFG's periodic reports under the 1934 Act or
AFG ceases to file periodic reports pursuant to the 1934 Act, "Ambac
Information" includes the audited financial statements of Ambac
contemplated by Item 30 of Part C of the Registration Statement.
"Ambac Group" means any of Ambac, its subsidiaries and Affiliates, and
any director, officer, employee or "controlling person," within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, of
any of the foregoing.
"Indemnified Party" means any party entitled to any indemnification
pursuant to Section 5 hereof.
"Indemnifying Party" means any party required to provide
indemnification pursuant to Section 5 hereof.
"Losses" means (a) any actual out-of-pocket damages incurred by the
party entitled to indemnification or contribution hereunder, (b) any actual
out-of-pocket costs or expenses incurred by such party, including
reasonable fees or expenses of its counsel and other expenses incurred in
connection with investigating or defending any
claim, action or other proceeding which entitle such party to be
indemnified hereunder (subject to the limitations set forth in Section
4 hereof), to the extent not paid, satisfied or reimbursed from funds
provided by any other Person other than an Affiliate of such party
(provided that the foregoing shall not create or imply any obligation
to pursue recourse against any such other Person), plus (c) interest
on the amount paid by the party entitled to indemnification or
contribution from the date of such payment to the date of payment by
the party who is obligated to indemnify or contribute hereunder at the
statutory rate applicable to judgments for breach of contract.
"Registration Statement" means the Trust's registration statement
on Form N-1A with respect to each class of Shares of the Fund, as it
may be amended from time to time with respect to each class of Shares
of the Fund. "Registration Statement" includes the prospectus dated
January 17, 2003 and the related statement of additional information.
"Relevant Parties" means the Adviser, the Fund and the
Distributors.
"Relevant Party Group" means, with respect to the Relevant
Parties, the Relevant Parties, their respective parents, subsidiaries
and Affiliates and any director, officer, employee or "controlling
person," within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, of the foregoing.
"Shares" means the shares of beneficial interest of any class of
the Fund.
Section 2. Representations and Warranties of Ambac. Ambac represents,
warrants and agrees that the Ambac Information included in the Registration
Statement and any amendment or supplement thereto does not and will not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
Section 3. Representations, Warranties and Agreements of the Relevant
Parties. Each of the Relevant Parties represents, warrants and agrees, severally
and not jointly, as follows:
(a) Except for the Ambac Information (as to which such Relevant Party does
not make any representation or warranty), the information contained in the
Registration Statement and any amendment or supplement thereto with respect to
such Relevant Party or furnished by such Relevant Party does not contain and
will not contain any untrue statement of a material fact and does not omit and
will not omit to state therein a material fact necessary to make the statements
therein not materially misleading in light of the circumstances in which they
are made. All of the information in the Registration Statement, other than the
Ambac Information, shall be deemed to be with respect to, or furnished by, one
or more of the Relevant Parties, as determined by the Relevant Parties inter se.
(b) Such Relevant Party has not violated in any material respect and will
not violate in any material respect any law, rule or regulation applicable to it
in connection with the issuance, offer and sale of Shares of the Fund.
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(c) Such Relevant Party will not use, or distribute to any Person for use,
or permit the use of any Registration Statement (or any prospectus or statement
of additional information forming a part thereof) in connection with the offer
and sale of the Shares of the Fund unless such Registration Statement includes
or incorporates by reference such information as has been furnished by Ambac for
inclusion therein and the information therein or incorporated by reference
therein concerning Ambac has been approved by Ambac in writing.
Section 4. Indemnification.
(a) Ambac agrees, upon the terms and subject to the conditions provided
herein, to indemnify, defend and hold harmless each Person in the Relevant Party
Group against any and all Losses resulting from Ambac's breach of any of its
representations, warranties or agreements set forth in Section 2 hereof.
(b) Each Relevant Party agrees, upon the terms and subject to the
conditions provided herein, to indemnify, defend and hold harmless each Person
in the Ambac Group against any and all Losses resulting from such Relevant
Party's breach of any of its representations, warranties or agreements set forth
in Section 3 hereof.
(c) Upon the incurrence of any Losses for which a party is entitled to
indemnification hereunder, the Indemnifying Party shall reimburse the
Indemnified Party promptly upon establishment by the Indemnified Party to the
Indemnifying Party of the Losses incurred.
(d) The indemnity agreements contained in this Section 4 shall be in
addition to any liability which any Indemnifying Party may otherwise have to an
Indemnified Party.
Section 5. Indemnification Procedures. In the event that any action or
regulatory proceeding shall be commenced or claim asserted which may entitle an
Indemnified Party to be indemnified under this Agreement, such party shall give
the Indemnifying Party written or telegraphic notice of such action or claim
reasonably promptly after receipt of written notice thereof; provided, however,
that the failure to notify the Indemnifying Party shall not relieve it from any
liability it may have to an Indemnified Party otherwise than under this Section
5. If any such action or claim shall be brought against an Indemnified Party,
and it shall notify the Indemnifying Party thereof, the Indemnifying Party, upon
the request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and
shall pay the fees and disbursements of such counsel related to such proceeding.
The Indemnified Party will have the right to employ its own counsel in any such
action in addition to the counsel retained by the Indemnifying Party for the
benefit of the Indemnified Party, but the fees and expenses of such counsel will
be at the expense of such Indemnified Party, unless (a) the employment of
counsel by the Indemnified Party at the Indemnifying Party's expense has been
authorized in writing by the Indemnifying Party, (b) the Indemnifying Party has
not in fact employed counsel reasonably satisfactory to the Indemnified Party
within a reasonable time after receiving notice of the commencement of the
action, or (c) the named parties to any such action or proceeding (including any
impleaded parties) include both the Indemnifying Party and one or more
Indemnified Parties, and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
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between them (it being understood, however, that the Indemnifying Party shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time, in addition to local counsel (if necessary), which firm shall be
designated in writing by the Adviser in respect of the Adviser and the
Distributor, by the Fund in respect of the Fund, and by Ambac in respect of
Ambac), in each of which cases the fees and expenses of counsel will be at the
expense of the Indemnifying Party and all such fees and expenses will be
reimbursed promptly as they are incurred. The Indemnifying Party shall not be
liable for any settlement of any such claim or action unless the Indemnifying
Party shall have consented thereto or be in default in its obligations
hereunder. Any failure by an Indemnified Party to comply with the provisions of
this Section shall relieve the Indemnifying Party of liability only if such
failure is prejudicial to the position of the Indemnifying Party and then only
to the extent of such prejudice.
Section 6. Contribution.
(a) To provide for just and equitable contribution if the indemnification
provided by an Indemnifying Party is determined to be unavailable or
insufficient to hold harmless any Indemnified Party in respect of any Losses
referred to in Section 4, such Indemnifying Party shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses (i) in such
proportion as shall be appropriate to reflect the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand, with respect to the matter that resulted in such Losses or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative fault
referred to in clause (i) above but also the relative benefits received by each
of such parties from the offering of the Shares, as well as any other relevant
equitable considerations; provided, however, that an Indemnifying Party shall in
no event be required to contribute to all Indemnified Parties an aggregate
amount in excess of the Losses incurred by such Indemnified Parties resulting
from the breach of representations, warranties or agreements contained in this
Agreement.
(b) The relative fault of each Indemnifying Party, on the one hand, and of
each Indemnified Party, on the other, shall be determined by reference to, among
other things, whether the breach of, or alleged breach of, any representations,
warranties or agreements contained in this Agreement relates to information
supplied by, or action within the control of, the Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge access to
information and opportunity to correct or prevent such breach. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 6 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to herein.
(c) No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution hereunder
from any person who was not guilty of such fraudulent misrepresentation.
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(d) Upon the incurrence of any Losses entitled to contribution hereunder,
the contributor shall reimburse the party entitled to contribution promptly upon
establishment by the party entitled to contribution to the contributor of the
Losses incurred.
Section 7. Miscellaneous.
(a) Notices. All notices and other communications provided for under this
Agreement shall be delivered to the address set forth below or to such other
address as shall be designated by the recipient in a written notice to the other
party or parties hereto.
If to Ambac: Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Managing Director, Structured Finance and
Credit Derivatives
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Adviser: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Company
▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone:
Facsimile:
If to Trust or Fund: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Company
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Company
▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Facsimile:
If to the Distributor: ▇▇▇▇▇▇▇ Fund Distributors, Inc.
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Company
▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Facsimile:
(b) Assignments. This Agreement may not be assigned by any party without
the express written consent of each other party. Any assignment made in
violation of this Agreement shall be null and void.
(c) Amendments. Amendments to this Agreement shall be in writing signed by
each party hereto.
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(d) Survival, Etc. The indemnity and contribution agreements contained in
this Agreement shall survive the termination of this Agreement. The
indemnification provided in this Agreement will be in addition to any liability
which the parties may otherwise have and shall in no way limit any obligations
of the Adviser and the Fund to Ambac under the Financial Guarantee Agreement
contemplated by the Registration Statement.
(e) Headings. The headings in this Agreement are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
(f) Counterparts. This Agreement may be executed in counterparts by the
parties hereto, and all such counterparts shall constitute one and the same
instrument.
(g) Consent to Jurisdiction; Waiver of Trial by Jury.
THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY COURT
IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT
AGAINST IT AND TO OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREUNDER OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE THAT ALL CLAIMS
IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD OR DETERMINED IN SUCH
NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.
THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY WAIVE AND AGREE NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THE
RELATED DOCUMENTS OR THE SUBJECT MATTER THEREOF MAY NOT BE LITIGATED IN OR BY
SUCH COURTS.
THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE PARTIES HERETO. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUCH PARTIES ENTERING INTO
THIS AGREEMENT.
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(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (including Section 5-1401 of
the New York General Obligations Law but excluding all other choice of law and
conflicts of law rules).
(i) No Right of Set Off. None of the parties shall be entitled to exercise
any right of set off with respect to any amounts owing by such party under this
Agreement against any amounts owing to such party under any other agreement or
obligation
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed and delivered as of the date first above written.
AMBAC ASSURANCE CORPORATION
By:
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Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT
MANAGEMENT COMPANY, as Adviser
By:
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Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT COMPANY,
on behalf of its series ▇▇▇▇▇▇▇
Multi-Manager Principal Protected
Fund
By:
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Name:
Title:
▇▇▇▇▇▇▇ FUND DISTRIBUTORS, INC.
By:
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Name:
Title: