Exhibit (k)(4)
FORM OF STRUCTURING FEE AGREEMENT
July [__], 2007
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date hereof (the
"Underwriting Agreement"), by and among Xxxxx Xxxxx Risk-Managed Diversified
Equity Income Fund (the "Fund"), Xxxxx Xxxxx Management (the "Adviser") and
Rampart Investment Management Company, Inc. and each of the Underwriters named
therein, with respect to the issue and sale of the Fund's Common Shares, as
described therein. Capitalized terms used herein and not otherwise defined shall
have the meanings given to them in the Underwriting Agreement.
1. Fee. In consideration of your services in offering advice relating to
the structure and design of the Fund and the organization of the Fund as well as
services related to the sale and distribution of the Fund's Common Shares, which
services may be completed by your affiliate in your sole discretion, the Adviser
shall pay a fee to you in the aggregate amount of $[__________] (the "Fee"). The
Fee shall be paid on or before [___], 2007. The payment shall be made by wire
transfer to the order of Citigroup Global Markets Inc.
2. Term. This Agreement shall terminate upon the payment of the entire
amount of the Fee, as specified in Section 1 hereof.
3. Indemnification. The Adviser agrees 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.
4. Not an Investment Adviser; No Fiduciary Duty. The Adviser acknowledges
that you are not providing any advice hereunder as to the value of securities or
regarding the advisability of purchasing or selling any securities for the
Fund's portfolio. No provision of this Agreement shall be considered as
creating, nor shall any provision create, any obligation on the part of you, and
you are not agreeing hereby, 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. The Adviser hereby acknowledges that your engagement
under this Agreement is as an independent contractor and not in any other
capacity, including as a fiduciary. Furthermore, the
Adviser agrees that it is solely responsible for making its own judgments in
connection with the matters covered by this Agreement (irrespective of whether
you have advised or are currently advising the Adviser on related or other
matters).
5. Not Exclusive. Nothing herein shall be construed as prohibiting you or
your affiliates from acting as an underwriter or financial adviser or in any
other capacity for any other persons (including other registered investment
companies or other investment managers).
6. Assignment. This Agreement may not be assigned by any party without
prior written consent of the other party.
7. Amendment; Waiver. No provision of this Agreement may be amended or
waived except by an instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
9. Counterparts. This 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 Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
[END OF TEXT]
This Agreement shall be effective as of the date first written above.
XXXXX XXXXX MANAGEMENT
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Agreed and Accepted:
CITIGROUP GLOBAL MARKETS INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
INDEMNIFICATION AGREEMENT
July [__], 2007
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Citigroup Global Markets Inc. (the "Bank")
to advise and assist the undersigned (together with its affiliates and
subsidiaries, referred to as the "Company") with the matters set forth in the
Structuring Fee Agreement dated July [__], 2007 between the Company and the Bank
(the "Agreement"), in the event that the Bank 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") with respect to the services
performed pursuant to and in accordance with the Agreement, the Company agrees
to indemnify, defend and hold the Bank harmless to the fullest extent permitted
by law, from and against any losses, claims, damages, liabilities and expenses
with respect to the services performed pursuant to and in accordance with the
Agreement, except to the extent that it shall be determined by a court of
competent jurisdiction in a judgment that has become final in that it is no
longer subject to appeal or other review, that such losses, claims, damages,
liabilities and expenses resulted primarily from the gross negligence or willful
misconduct of the Bank. In addition, in the event that the Bank becomes involved
in any capacity in any Proceeding with respect to the services performed
pursuant to and in accordance with the Agreement, the Company will reimburse the
Bank for its legal and other expenses (including the cost of any investigation
and preparation) as such expenses are incurred by the Bank in connection
therewith. Promptly after receipt by the Bank of notice of the commencement of
any Proceeding, the Bank will, if a claim in respect thereof is to be made
against the Company under this paragraph, notify the Company in writing of the
commencement thereof; but the failure so to notify the Company (i) will not
relieve it from liability under this paragraph unless and to the extent it did
not otherwise learn of such Proceeding and such failure results in the
forfeiture by the Company of substantial rights and defenses and (ii) will not,
in any event, relieve the Company from any obligations to the Bank other than
the indemnification obligation provided above. The Company shall be entitled to
appoint counsel of the Company's choice at the Company's expense to represent
the Bank in any Proceeding for which indemnification is sought (in which case
the Company shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the Bank or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the Bank.
Notwithstanding the Company's election to appoint counsel to represent the Bank
in a Proceeding, the Bank shall have the right to employ separate counsel
(including local counsel), and the Company shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
Company to represent the Bank would present such counsel with a conflict of
interest, (ii)
4
the actual or potential defendants in, or targets of, any such Proceeding
include both the Bank and the Company and the Bank shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the Company, (iii) the Company shall not have employed counsel satisfactory to
the Bank to represent the Bank within a reasonable time after notice of the
institution of such Proceeding or (iv) the Company shall authorize the Bank to
employ separate counsel at the expense of the Company.
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 and its stockholders
and affiliates and other constituencies, on the one hand, and the Bank, 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 and its stockholders and affiliates and other constituencies, 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 and its stockholders and affiliates and other
constituencies, 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 by or paid to or contemplated to be
received by or paid to the Company or its stockholders and affiliates and other
constituencies, as the case may be, as a result of or in connection with the
transaction (whether or not consummated) for which the Bank has been retained to
perform services bears to the fees paid to the Bank under the Agreement;
provided, that in no event shall the Company contribute less than the amount
necessary to assure that the Bank is not liable for losses, claims, damages,
liabilities and expenses in excess of the amount of fees actually received by
the Bank 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 the Bank, on the other hand. Notwithstanding the provisions
of this paragraph, the Bank shall not be entitled to contribution from the
Company if it is determined that the Bank was guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act of
1933, as amended) and the Company was not guilty of such fraudulent
misrepresentation. The Company will not settle any Proceeding in respect of
which indemnity may be sought hereunder, whether or not the Bank is an actual or
potential party to such Proceeding, without the Bank's prior written consent.
For purposes of this Indemnification Agreement, the Bank shall include the Bank,
any of its affiliates, each other person, if any, controlling the Bank 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 the Bank 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 with respect to the services performed pursuant to
5
and in accordance with the Agreement, except to the extent that it shall be
determined by a court of competent jurisdiction in a judgment that has become
final in that it is no longer subject to appeal or other review that any losses,
claims, damages, liabilities or expenses incurred by the Company resulted
primarily from the gross negligence or willful misconduct of the Bank in
performing the services that are the subject of the Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF
ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE SERVICES PERFORMED PURSUANT TO
AND IN ACCORDANCE WITH THE 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 THE BANK 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 ANY THIRD PARTY AGAINST THE BANK OR ANY INDEMNIFIED PARTY. EACH OF
THE BANK 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.
6
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of the Bank's 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,
XXXXX XXXXX MANAGEMENT
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted and agreed to as of
the date first above written:
CITIGROUP GLOBAL MARKETS INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
