Exhibit 99.B-(2)(K)(vi)
FORM OF
ADDITIONAL COMPENSATION AGREEMENT
[ ], 2005
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated [ ], 2005 (the
"Underwriting Agreement"), by and among ING Global Equity Dividend and Premium
Income Fund, a closed-end management investment company (the "Fund"), ING
Investments, LLC ("ING Investments" or the "Advisor") and UBS Securities LLC,
with respect to the issue and sale of the Fund's common shares of beneficial
interest, par value $0.01 per share (the "Common Shares"), as described therein.
Reference is also made to (i) the Investment Management Agreement, dated [ ],
2005 (the "Investment Management Agreement"), between ING Investments and the
Fund and (ii) the registration statement on Form N-2 regarding the Common Shares
of the Fund (the "Registration Statement"). Capitalized terms used herein and
not otherwise defined shall have the meanings given to them in the Underwriting
Agreement.
ING Investments hereby confirms its agreement with UBS Securities LLC with
respect to the additional compensation referred to in the "Underwriting" section
of the Registration Statement, payable by ING Investments to UBS Securities LLC.
ING Investments agrees to pay UBS Securities LLC additional compensation (the
"Additional Compensation") as provided for in Section 2 hereof; provided that
such Additional Compensation shall be an amount equal to 0.15% of the Fund's
average weekly total managed assets (i.e., total assets of the Fund (including
any assets attributable to any Preferred Shares and borrowings that may be
outstanding) minus accrued liabilities (other than liabilities representing
borrowings) (the "Total Managed Assets") attributable to the Common Shares sold
by UBS Securities LLC in the offering; and provided, further, that such payments
shall not exceed the "Maximum Additional Compensation Amount" (as defined in
Section 3 hereof). The Additional Compensation shall be payable as set forth in
Section 2 hereof.
SECTION 1. UBS SECURITIES LLC.
(a) Within 60 days following the Closing Date, UBS Securities LLC shall
prepare or cause to be prepared and provide to ING Investments the aggregate
purchase price to the public of the Common Shares sold by UBS Securities LLC,
which shall be appended as Schedule A to this Additional Compensation Agreement.
Such Schedule A shall be prepared in good faith by UBS Securities LLC and
subject to verification by ING Investments.
(b) ING Investments hereby employs UBS Securities LLC, for the period and
on the terms and conditions set forth herein, to provide the following services
at the reasonable request of ING Investments:
(i) after-market support services designed to maintain the
visibility of the Fund on an ongoing basis;
(ii) relevant information, studies or reports regarding general
trends in the closed-end investment company and asset management industries, if
reasonably obtainable, and consult with representatives of ING Investments in
connection therewith; and
(iii) the provision of information to and consultation with ING
Investments with respect to applicable strategies designed to address market
value discounts, if any, with respect to the Fund.
SECTION 2. PAYMENT OF ADDITIONAL COMPENSATION.
(a) ING Investments shall pay the Additional Compensation, quarterly in
arrears, to UBS Securities LLC in an amount equal to the amount attributable to
the Common Shares sold by UBS Securities LLC in the offering multiplied by
0.0375% of the average weekly Total Managed Assets of the Fund for such quarter.
(b) All fees payable hereunder shall be paid to UBS Securities LLC by wire
transfer of immediately available funds within 15 days following the end of each
calendar quarter to a bank account designated by UBS Securities LLC. At the time
of each payment of Additional Compensation hereunder, ING Investments shall
deliver to UBS Securities LLC a statement indicating the amount of the average
weekly Total Managed Assets of the Fund for such quarter on which such payment
was based.
(c) The initial payment of Additional Compensation hereunder shall be paid
with respect to the calendar quarter ending June 30, 2005. The initial payment
for the calendar quarter ending June 30, 2005, shall be pro rated for the period
March 31, 2005, 2005, through June 30, 2005. In the event that this Additional
Compensation Agreement terminates prior to the end of a calendar quarter, the
Additional Compensation required to be paid hereunder shall be due and payable
within 15 days following the termination hereof and shall be pro-rated in
respect of the period prior to such termination. Notwithstanding the foregoing,
if any payment hereunder would otherwise fall on a day which is not a business
day, it shall be due on the next day which is a business day. All fees payable
hereunder shall be in addition to any fees paid by the Manager pursuant to the
Underwriting Agreement.
SECTION 3. MAXIMUM ADDITIONAL COMPENSATION AMOUNT. The "Maximum
Additional Compensation Amount" payable by ING Investments to UBS Securities LLC
hereunder shall be [_____]% of the aggregate initial offering price of the
Common Shares.
SECTION 4. TERM. This Additional Compensation Agreement shall continue
coterminously with and so long as the Investment Management Agreement remains in
effect between the Fund and ING Investments, or any similar investment
management agreement with a successor in interest or affiliate of ING
Investments remains in effect, as and to the extent that such investment
management agreement is renewed periodically in accordance with the Investment
Company Act of 1940, as amended. This Additional Compensation Agreement shall
terminate on the earliest to occur of (a) with respect to UBS Securities LLC,
the payment by ING Investments to UBS Securities LLC of the Maximum Additional
Compensation Amount, (b) with respect to the Fund, the dissolution and winding
up of the Fund and (c) with respect to ING Investments, the date on which the
Investment Management Agreement or other investment management agreement between
the Fund and ING Investments or any successor in interest to ING Investments,
including but not limited to an affiliate of ING Investments, shall terminate.
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SECTION 5. Except to the extent legally required (after consultation
with, and approval as to form and substance by, UBS Securities LLC and its
counsel), none of (i) the name of UBS Securities LLC, (ii) any advice rendered
by UBS Securities LLC to ING Investments, or (iii) or any communication from UBS
Securities LLC in connection with the services performed by UBS Securities LLC
pursuant to this Agreement will be quoted or referred to orally or in writing,
or in the case of (ii) and (iii), reproduced or disseminated, by ING Investments
or any of its affiliates or any of their agents, without UBS Securities LLC's
prior written consent. UBS hereby agrees to the use of its name in the
Registration Statement on Form N-2 (File No. 333-114333) of the Fund.
SECTION 6. ING Investments will furnish UBS Securities LLC with such
information as UBS Securities LLC believes appropriate to its assignment (all
such information so furnished being the "Information"). ING Investments
recognizes and confirms that UBS Securities LLC (a) will use and rely primarily
on the Information and on information available from generally recognized public
sources in performing the services contemplated by this Agreement without having
assumed responsibility for independently verifying the same, (b) does not assume
responsibility for the accuracy, completeness or reasonableness of the
Information and such other information and (c) will not make an appraisal of any
assets or liabilities (contingent or otherwise) of the Fund. ING Investments
represents that at any time UBS Securities LLC is undertaking after market
support services, the publicly available information with respect to the Fund
made public by or at the direction of ING Investments or the Fund will not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein not misleading.
SECTION 7. NOT AN INVESTMENT ADVISER. ING Investments acknowledges that
UBS Securities LLC is not providing any advice hereunder as to the value of
securities or regarding the advisability of purchasing or selling any securities
for the Fund. No provision of this Additional Compensation Agreement shall be
considered as creating, nor shall any provision create, any obligation on the
part of any Underwriter, and the Underwriters are not hereby agreeing, to: (i)
furnish any advice or make any recommendations regarding the purchase or sale of
portfolio securities or (ii) render any opinions, valuations or recommendations
of any kind or to perform any such similar services. ING Investments
acknowledges and agrees that UBS Securities LLC has been retained solely to
provide the services specified herein to ING Investments, and not to act as an
advisor to any other person, and ING Investments' engagement of UBS Securities
LLC is not intended to confer rights upon any person (including the Fund or
shareholders, employees or creditors of ING Investments or the Fund) not a party
hereto as against UBS Securities LLC or its affiliates, or its directors,
officers, employees or agents, successors, or assigns. UBS Securities LLC shall
act as an independent contractor under this Agreement, and not in any other
capacity including as a fiduciary, and any duties arising out of its engagement
shall be owed solely to ING Investments.
SECTION 8. NOT EXCLUSIVE. Nothing herein shall be construed as
prohibiting any Underwriter or its respective affiliates from acting as such for
any other clients (including other registered investment companies or other
investment advisers).
SECTION 9. LIABILITY AND INDEMNIFICATION. ING Investments and UBS
Securities each agree to the indemnification and other agreements set forth in
the Indemnification Agreement attached hereto, the provisions of which are
incorporated herein by reference and shall survive the termination, expiration
or supersession of this Agreement.
SECTION 10. ASSIGNMENT. This Additional Compensation Agreement may not be
assigned by any party without the prior written consent of each other party.
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SECTION 11. AMENDMENT; WAIVER. No provision of this Additional
Compensation Agreement may be amended or waived except by an instrument in
writing signed by the parties hereto.
SECTION 12. GOVERNING LAW. This Additional Compensation Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York. No claim, counterclaim or dispute of any kind or nature whatsoever arising
out of or in any way relating to this Agreement ("Claim") may be commenced,
prosecuted or continued in any court other than the courts of the State of New
York located in the City and County of New York or in the United States District
Court for the Southern District of New York, which courts shall have exclusive
jurisdiction over the adjudication of such matters, and ING Investments and UBS
Securities LLC consent to the jurisdiction of such courts and personal service
with respect thereto. ING Investments and UBS Securities LLC each waive all
rights to trial by jury in any proceeding (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement.
SECTION 13. COUNTERPARTS. This Additional Compensation Agreement may be
executed in any number of counterparts, each of which shall be an original, and
all of which, when taken together, shall constitute one agreement. Delivery of
an executed signature page of this Additional Compensation Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among ING
Investments and UBS Securities LLC in accordance with its terms.
Very truly yours,
UBS SECURITIES LLC
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
ING INVESTMENTS LLC
By:
---------------------------
Name:
Title:
SCHEDULE A
AGGREGATE
NAME OF QUALIFYING PURCHASE PRICE TO PUBLIC PRO RATA
UNDERWRITER OF COMMON SHARES SOLD PERCENTAGE
--------------------------------------------------------------------------------
UBS Securities LLC $[______] [__]%
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UBS SECURITIES LLC INDEMNIFICATION AGREEMENT
[ ], 2005
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In connection with the engagement of UBS Securities LLC ("UBS Securities")
to provide services to the undersigned (the "Company") as set forth in the
Agreement dated [ ], 2005, between the Company and UBS Securities (the
"Agreement"), in the event that UBS Securities becomes involved in any capacity
in any claim, suit, action, proceeding, investigation or inquiry (including,
without limitation, any shareholder or derivative action or arbitration
proceeding) (collectively, a "Proceeding") (i) in connection with or arising out
of any untrue statement or alleged untrue statement of a material fact contained
in information with respect to the Fund made pubic by or at the direction of the
Fund or any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or (ii) otherwise in connection with any
matter in any way relating to or referred to in the Agreement or arising out of
the matters contemplated by the Agreement, including, without limitation,
related services and activities prior to the date of the Agreement, the Company
agrees to indemnify, defend and hold UBS Securities harmless to the fullest
extent permitted by law, from and against any losses, claims, damages,
liabilities and expenses in connection with any matter in any way relating to or
referred to in the Agreement or arising out of the matters contemplated by the
Agreement, including, without limitation, related services and activities prior
to the date of the Agreement, except, (a) in the case of clause (i) only, to the
extent it shall be determined by a court of competent jurisdiction that such
losses claims, damages, liabilities and expenses resulted from UBS Securities
using, in a manner constituting gross negligence or willful misconduct of UBS
Securities, an outdated report or information instead of a recent report or
information made available to UBS Securities that replaced the outdated report
or information or (b) in the case of clause (ii) only, to the extent it shall be
determined by a court of competent jurisdiction that such losses, claims,
damages, liabilities and expenses resulted from the gross negligence or willful
misconduct of UBS Securities. In addition, in the event that UBS Securities
becomes involved in any capacity in any Proceeding in connection with any matter
in any way relating to or referred to in the Agreement or arising out of the
matters contemplated by the Agreement, including, without limitation, related
services and activities prior to the date of the Agreement, the Company will
reimburse UBS Securities for its reasonable legal and other expenses (including
the cost of any investigation and preparation) as such expenses are incurred by
UBS Securities in connection therewith. If such indemnification were not to be
available for any reason, the Company agrees to contribute to the losses,
claims, damages, liabilities and expenses involved (i) in the proportion
appropriate to reflect the relative benefits received or sought to be received
by the Company, on the one hand, and UBS Securities, on the other hand, in the
matters contemplated by the Agreement or (ii) if (but only if and to the extent)
the allocation provided for in clause (i) is for any reason held unenforceable,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company, on the one
hand, and the party entitled to contribution, on the other hand, as well as any
other relevant equitable considerations. The Company agrees that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Company, on the one hand, and the party entitled to
contribution, on the other hand, of a transaction as contemplated shall be
deemed to be in the same proportion that the total value received or paid or
contemplated to be received or paid by the Company, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for
which UBS Securities has been retained to perform services bears to the fees
paid to UBS Securities under the Agreement; PROVIDED, that in no event shall the
Company contribute less than the amount necessary to assure that UBS Securities
is not liable
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for losses, claims, damages, liabilities and expenses in excess of the amount of
fees actually received by UBS Securities pursuant to the Agreement. Relative
fault shall be determined by reference to, among other things, whether any
alleged untrue statement or omission or any other alleged conduct relates to
information provided by the Company or other conduct by the Company (or its
employees or other agents), on the one hand, or by UBS Securities, on the other
hand. Promptly after UBS Securities receives actual notice of the commencement
of any Proceeding in respect of which indemnification or reimbursement may be
sought hereunder, UBS Securities will notify the Company thereof; but the
omission so to notify the Company shall not relieve the Company from any
obligation hereunder unless, and only to the extent that, such omission results
in the Company's forfeiture of substantive rights or defenses. If any such
action or other proceeding shall be brought against UBS Securities, the Company
shall, upon written notice given reasonably promptly following UBS Securities'
notice to the Company of such Proceeding, be entitled to assume the defense
thereof at the Company's expense with counsel chosen by the Company and
reasonably satisfactory to UBS Securities; provided, however, that UBS
Securities may retain separate counsel to participate in such defense but the
fees and expenses of such counsel shall be at the expense of UBS Securities
unless the employment of such counsel shall have been authorized in writing by
the Company in connection with the defense of such Proceeding or the Company
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel reasonably satisfactory to UBS Securities to
have charge of the defense of such Proceeding or UBS Securities shall have
reasonably concluded that there may be defenses available to it which are
different from, additional to or in conflict with those available to the Company
(in which case the Company shall not have the right to direct the defense of
such Proceeding on behalf of UBS Securities), in any of which events such fees
and expenses shall be borne by the Company and paid as incurred (it being
understood, however, that the Company shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction). The
Company agrees that it will not, without the prior written consent of UBS
Securities, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened Proceeding in respect of which
indemnification could be sought under this Indemnification Agreement (whether or
not UBS Securities is an actual or potential party thereto), unless such
settlement, compromise or consent includes an unconditional release of UBS
Securities from all liability arising out of such Proceeding and does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of UBS Securities. For purposes of this Indemnification
Agreement, UBS Securities shall include UBS Securities LLC, any of its
affiliates, each other person, if any, controlling UBS Securities or any of its
affiliates, their respective officers current and former directors, employees
and agents, and the successors and assigns of all of the foregoing persons. The
foregoing indemnity and contribution agreement shall be in addition to any
rights that any indemnified party may have at common law or otherwise.
The Company agrees that neither UBS Securities nor any of its affiliates,
directors, agents, employees or controlling persons shall have any liability to
the Company or any person asserting claims on behalf of or in right of the
Company in connection with or as a result of either UBS Securities' engagement
under the Agreement or any matter referred to in the Agreement, including,
without limitation, related services and activities prior to the date of the
Agreement, except to the extent that any such losses, claims, damages,
liabilities or expenses incurred by the Company resulted solely from the gross
negligence or willful misconduct of UBS Securities in performing the services
that are the subject of the Agreement.
Notwithstanding the foregoing or anything to the contrary in this
Agreement, the Company's indemnification obligations under this Agreement shall
not apply to any losses, claims, damages, liabilities, fines or expenses arising
out of or relating to the characterization of the compensation payable by the
Company to UBS Securities under the Agreement, including with respect to the
characterization of such compensation under applicable rules of the NASD, Inc.
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For the avoidance of doubt, UBS Securities' underwriting activities on
behalf of the Company or its clients, including the Fund referred to in the
Agreement, shall not constitute a matter in any way relating to or referred to
in the Agreement or be deemed to arise out of matters contemplated by the
Agreement, and the Company's indemnification obligations hereunder shall not
apply to any Proceeding arising out of or relating to such underwriting
activities.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF
ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. EXCEPT AS SET FORTH BELOW,
NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE
COURTS OF THE STATE OF
NEW YORK LOCATED IN THE CITY AND COUNTY OF
NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, WHICH
COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS,
AND THE COMPANY AND UBS SECURITIES CONSENT TO THE JURISDICTION OF SUCH COURTS
AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY HEREBY CONSENTS TO
PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING
OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY AND THIRD PARTY
AGAINST UBS SECURITIES OR ANY INDEMNIFIED PARTY. EACH OF UBS SECURITIES AND THE
COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO
THIS AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR
CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED
IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE
SUBJECT, BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of UBS Securities' engagement. This
Indemnification Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
Very truly yours,
ING INVESTMENTS LLC
By:
--------------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
UBS SECURITIES LLC
By:
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By:
Title:
By:
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By:
Title:
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