Before CLARK, SMITH and HAYS, Circuit Judges.
The issue which we are called upon to decide is whether a trustee of an investment trust registered under the Investment Company Act of 1940*fn1 can protect itself from liability to shareholders of the fund by including in the trust indenture a provision requiring shareholders to provide "indemnity" for the costs and expenses of actions against the trustee. We hold that § 17(h) of the Act prevents the trustee from requiring such indemnity.
The appellants are shareholders in the National Securities Series, a mutual investment fund organized as a common law trust and registered under the Investment Company Act of 1940. They brought the present actions against Empire Trust Company, as trustee, and National Securities and Research Corporation, as investment advisor, of the fund,*fn2 alleging, inter alia, that the fees annually collected by the defendants from the fund are "grossly excessive and out of proportion to the value of the services rendered," that these payments constitute willful conversion of the assets of the fund in violation of § 37 of the Act, as well as a "[gross] abuse of trust * * [and] willful misfeasance" in violation of various provisions of the acts.*fn3 The complaints demand, in behalf of all shareholders, restoration to the fund of payments illegally made.
The court below, on motion of Empire, ordered that proceedings in the action be stayed until each of the plaintiffs delivers to Empire a bond in the amount of $35,000 to indemnify it for the costs and expenses of defending the action should the defendant prevail. The action against National was stayed until plaintiffs either post the required bonds or consent to a dismissal of the suit against Empire.*fn4 It is this order which is here on appeal.*fn5
The clause of the trust agreement on which Empire relies to sustain the order of the lower court provides:
"8.10. No shareholder and no legal representative of any deceased or incompetent shareholder shall have the right to take any action or proceeding for the partition or winding up of the trust. No such shareholder or representative shall have the right to an accounting, except upon furnishing indemnity satisfactory to the Trustee against the costs and expenses thereof, including counsel fees, such indemnity to be payable unless it shall be established that the Trustee has been guilty of fraud, or of misfeasance, or of gross negligence with respect to the performance of duties specifically imposed upon it hereunder, substantially prejudicial to shareholders."
We hold that the clause must fail of its intended purpose because it is violative of § 17(h) of the Investment Company Act of 1940 which provides:
"After one year from the effective date of this title, neither the charter, certificate of incorporation, articles of association, indenture of trust, nor the by-laws of any registered investment company, nor any other instrument pursuant to which such a company is organized or administered, shall contain any provision which protects or purports to protect any director or officer of such company against any liability to the company or to its security holders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office."*fn6
Empire contends that § 17(h) does not invalidate the indemnity provision of its "indenture of trust," because Empire is not a "director." Section 2 of the Act defines a director as "any director of a corporation or any person performing similar functions with respect to any organization, whether incorporated or unincorporated, including any natural person who is a member of a board of trustees of a management company created as a common-law trust." And a "person" is defined as "a natural person or a company."
Empire's powers under the Trust Agreement bring it within this definition. Empire is responsible for the entire management of the fund, except the purchase and sale of the portfolio securities. Empire is empowered "to do all acts, take all proceedings and exercise all such rights and privileges relating to any property at any time held by it as Trustee as could be done, taken or exercised by the absolute owner thereof, except as expressly restricted herein." (Trust Agreement § 8.5.) "At any time the Trustee may take such action as it in good faith may believe to be required for the benefit of the trust property." (§ 8.8) Empire is charged with responsibility for selecting a successor investment advisor (§ 10.2) and must consent to the creation of any new series of shares (§ 11.1). It is unnecessary to describe in detail all of the many aspects of authority granted to Empire by the instrument. It is clear that the functions exercised by it as trustee are "similar" to those exercised by a director; indeed they are identical in many respects.
That the investment advisor controls the purchase and sale of securities does not tend to establish that Empire is not a "director" within the meaning of § 17(h). Section 15(a) contemplates that an investment company may have both an investment advisor and a board of directors, and under § 2(a) (19) an investment advisor may be "impowered to determine what securities or other property shall be purchased or sold by such company."
The purpose of § 17(h) is to ensure that liability for violation of the duties and standards provided by the Act will not be defeated by the inclusion of protective contractual clauses. It seems clear that Congress did not intend to prevent certain of the persons who are subject to liability for violation of the Act from protecting themselves in this manner, while permitting others to do so. Insofar as it is in accord with the language of the section, § 17(h) must be construed as coextensive with the substantive provisions of the Act. Under such a construction Empire is a "director" within the meaning of § 17(h).
Empire also urges that the indemnity clause of the trust agreement does not fall within the prohibition of § 17(h) because the clause does not purport to exonerate Empire from the consequences of a violation of the statute. This argument flies in the face of the statutory language which speaks of protection rather than exculpation, but even if we were to accept appellee's position we would, of course, insist on ...