Exhibit (k)(4)
SHAREHOLDER SERVICING AGREEMENT
SHAREHOLDER SERVICING AGREEMENT (the "Agreement"), dated as of
September , 2003, between Xxxxx Xxxxx Management ("Xxxxx Xxxxx") and UBS
Securities LLC ("UBS Securities").
WHEREAS, Xxxxx Xxxxx Tax-Advantaged Dividend Income Fund (the
"Fund") is a closed-end, diversified management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and its
shares of beneficial interest are registered under the Securities Act of 1933,
as amended; and
WHEREAS, Xxxxx Xxxxx is the investment adviser and the administrator
of the Fund; and
WHEREAS, Xxxxx Xxxxx desires to retain UBS Securities to provide
shareholder servicing and market information with respect to the Fund, and UBS
Securities is willing to render such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions
set forth below, the parties hereto agree as follows:
1. Xxxxx Xxxxx hereby employs UBS Securities, for the period and on the
terms and conditions set forth herein, to provide the following
services:
(a) Undertake to make available public information pertaining to
the Fund on an ongoing basis and to communicate to investors
and prospective investors the Fund's features and benefits
(including periodic seminars or conference calls, responses to
questions from current or prospective shareholders and
specific shareholder contact where appropriate);
(b) Make available to investors and prospective investors market
price, net asset value, yield and other information regarding
the Fund, if reasonably obtainable, for the purpose of
maintaining the visibility of the Fund in the investor
community;
(c) At the request of Xxxxx Xxxxx or the Fund, provide certain
economic research and statistical information and reports, if
reasonably obtainable, on behalf of Xxxxx Xxxxx or the Fund
and consult with representatives of Xxxxx Xxxxx and/or
Trustees of the Fund in connection therewith, which
information and reports shall include: (i) statistical and
financial market information with respect to the Fund's market
performance; and (ii) comparative information regarding the
Fund and other closed-end management investment companies with
respect to (x) the net asset value of their respective shares,
(y) the respective market performance of
the Fund and such other companies, and (z) other relevant
performance indicators;
(d) At the request of Xxxxx Xxxxx or the Fund, provide information
to and consult with Xxxxx Xxxxx and/or the Board of Trustees
of the Fund with respect to applicable strategies designed to
address market value discounts, which may include share
repurchases, tender offers, modifications to dividend policies
or capital structure, repositioning or restructuring of the
Fund, conversion of the Fund to an open-end investment
company, liquidation or merger; including providing
information concerning the use and impact of the above
strategic alternatives by other market participants;
(e) At the request of Xxxxx Xxxxx or the Fund, UBS Securities
shall limit or cease any action or service provided hereunder
to the extent and for the time period requested by Xxxxx Xxxxx
or the Fund; provided, however, that pending termination of
this Agreement as provided for is Section 5 hereof, any such
limitation or cessation shall not relieve Xxxxx Xxxxx of its
payment obligations pursuant to Section 2 hereof; and
(f) UBS Securities will promptly notify Xxxxx Xxxxx or the Fund,
as the case may be, if it learns of any material inaccuracy or
misstatement in, or material omission from, any written
information provided by UBS Securities to Xxxxx Xxxxx or the
Fund in connection with the performance of services by UBS
Securities under this Agreement.
2. Xxxxx Xxxxx will pay UBS Securities a fee computed daily and payable
quarterly at an annualized rate of 0.10% of the average daily gross
assets of the Fund; provided, however, that the fee payable
hereunder by Xxxxx Xxxxx to UBS Securities shall be reduced for the
duration of any period during which Xxxxx Xxxxx voluntarily agrees
to reduce or limit the management fee payable to it by the Fund
under any management contract with the Fund from time-to-time in
effect (provided, however, that the fee payable by Xxxxx Xxxxx shall
not be reduced in connection with any contractual fee waiver or
expense reimbursement, which is disclosed in the prospectus of the
Fund). The reduced fee payable hereunder during any such period
shall be the percentage of the usual fee payable hereunder equal to
the percentage of the usual management fee received by Xxxxx Xxxxx
after giving effect to the fee waiver or limitation (i.e., if the
management fee is effectively reduced by 40% the fee hereunder also
shall be reduced by 40%); provided further, that under no
circumstances shall the fee hereunder be reduced to less than zero
for any period.
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3. Xxxxx Xxxxx acknowledges that the shareholder services of UBS
Securities provided for hereunder do not include any advice 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 UBS Securities, and
UBS Securities is 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
in connection with providing the services described in Section 1
hereof.
4. Nothing herein shall be construed as prohibiting UBS Securities or
its affiliates from providing similar or other services to any other
clients (including other registered investment companies or other
investment managers), so long as UBS Securities' services to Xxxxx
Xxxxx and the Fund are not impaired thereby.
5. The term of this Agreement shall commence upon the date referred to
above and will continue coterminously with and so long as the
Investment Advisory Agreement, dated August 11, 2003, remains in
effect between the Fund and Xxxxx Xxxxx or any successor in interest
or affiliate of Xxxxx Xxxxx, as, and to the extent, that such
Investment Advisory Agreement is renewed periodically in accordance
with the 1940 Act.
6. Xxxxx Xxxxx will furnish UBS Securities with such information as UBS
Securities believes appropriate to its assignment hereunder (all
such information so furnished being the "Information"). Xxxxx Xxxxx
recognizes and confirms that UBS Securities (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 independently verified
the same and (b) does not assume responsibility for the accuracy or
completeness of the Information and such other information. To the
best of Xxxxx Xxxxx'x knowledge, the Information to be furnished by
Xxxxx Xxxxx when delivered, will be true and correct in all material
respects and will not contain any material misstatement of fact or
omit to state any material fact necessary to make the statements
contained therein not misleading. Xxxxx Xxxxx will promptly notify
UBS Securities if it learns of any material inaccuracy or
misstatement in, or material omission from, any Information
delivered to UBS Securities.
7. It is understood that UBS Securities is being engaged hereunder
solely to provide the services described above to Xxxxx Xxxxx and to
the Fund and that UBS Securities is not acting as an agent or
fiduciary of, and shall have no duties or liability to the current
or future shareholders of the Fund, the current or future
shareholders of the Fund or any other third party in
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connection with its engagement hereunder, all of which are hereby
expressly waived.
8. Xxxxx Xxxxx agrees that UBS Securities shall have no liability to
Xxxxx Xxxxx or the Fund for any act or omission to act by UBS
Securities in the course of its performance under this Agreement, in
the absence of bad faith, gross negligence or willful misconduct on
the part of UBS Securities. Xxxxx Xxxxx 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.
9. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY THEREIN AND
WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
10. EACH OF XXXXX XXXXX AND UBS SECURITIES AGREE THAT ANY ACTION OR
PROCEEDING BASED HEREON, OR ARISING OUT OF UBS SECURITIES'
ENGAGEMENT HEREUNDER, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN
XXX XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN THE CITY AND COUNTY
OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. XXXXX XXXXX AND UBS SECURITIES EACH HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY SUCH ACTION OR PROCEEDING AS SET FORTH ABOVE
AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH ACTION OR PROCEEDING. EACH OF XXXXX XXXXX
AND UBS SECURITIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY
HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT
IN ANY SUCH REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11. Xxxxx Xxxxx and UBS Securities each hereby irrevocably waive any
right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions
contemplated hereby.
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This Agreement may not be assigned by either party without the prior
written consent of the other party.
12. This Agreement (including the attached Indemnification Agreement)
embodies the entire agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings
relating to the subject matter hereof. If any provision of this
Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any
other respect or any other provision of this Agreement, which will
remain in full force and effect. This Agreement may not be amended
or otherwise modified or waived except by an instrument in writing
signed by both UBS Securities and Xxxxx Xxxxx.
13. All notices required or permitted to be sent under this Agreement
shall be sent, if to Xxxxx Xxxxx:
Xxxxx Xxxxx Corporation
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Legal Officer
or if to UBS Securities:
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
or such other name or address as may be given in writing to the
other parties. Any notice shall be deemed to be given or received on
the third day after deposit in the U.S. mail with certified postage
prepaid or when actually received, whether by hand, express delivery
service or facsimile transmission, whichever is earlier.
14. This Agreement may be exercised on separate counterparts, each of
which is deemed to be an original and all of which taken together
constitute one and the same agreement.
15. A copy of the Agreement and Declaration of Trust of Xxxxx Xxxxx is
on file with the Secretary of State of The Commonwealth of
Massachusetts, and notice hereby is given that this Agreement is
executed on behalf of the Trustees of Xxxxx Xxxxx as Trustees and
not individually and that the obligations or arising out of this
Agreement are not binding upon any of
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the Trustees or beneficiaries individually but are binding only upon
the assets and properties of Xxxxx Xxxxx.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Shareholder Servicing Agreement as of the date first above written.
XXXXX XXXXX MANAGEMENT
By:
--------------------------------
Name:
Title:
UBS SECURITIES LLC
By:
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
By:
--------------------------------
Name: Xxxx X. Reit
Title: Executive Director
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UBS Securities LLC Indemnification Agreement
September , 2003
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In connection with the engagement of UBS Securities LLC ("UBS
Securities") to advise and assist the undersigned (together with its affiliates
and subsidiaries, referred to as the "Company") with the matters set forth in
the Agreement dated September , 2003 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") 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 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 solely 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 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 and its stockholders and affiliates and other constituencies, 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 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, on the one hand, and the party entitled to
contribution, on the other hand, of a transaction as contemplated shall be
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deemed to be in the same proportion that the total value received or paid or
contemplated to be received or paid by the Company or its stockholders or
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 UBS
Securities has been retained to perform financial 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 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. The Company will not settle any Proceeding in
respect of which indemnity may be sought hereunder, whether or not UBS
Securities is an actual or potential party to such Proceeding, without UBS
Securities' prior written consent. 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 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 solely from the gross
negligence or willful misconduct of UBS Securities 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 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
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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.
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,
XXXXX XXXXX MANAGEMENT
By:
--------------------------------
Name:
Title
Accepted and agreed to as of
the date first above written:
UBS SECURITIES LLC
By:
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
By:
-------------------------------
Name: Xxxx X. Reit
Title: Executive Director
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