Form of STRUCTURING FEE AGREEMENT
Exhibit (k)(3)
Form of
September [ ], 2007
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between Xxxx Xxxxxxx Advisers, LLC (the “Company”) and UBS Securities LLC
(“UBS”) with respect to the Xxxx Xxxxxxx Tax-Advantaged Global Shareholder Yield Fund (the “Fund”).
1. Fee. In consideration of certain financial advisory services that UBS has provided
to the Company in assisting the Company in structuring and organizing the Fund, the Company shall
pay a fee to UBS of [ ] (the “Fee”). The Fee shall be paid promptly upon the closing of
the initial public offering of the Fund.
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 Company 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. Confidential Advice. Except to the extent required to be disclosed by the Company
to comply with applicable laws, to respond to legal process, to defend or prosecute litigation or
to comply with governmental regulations (after consultation with, and, in the case of UBS’s advice,
approval as to form and substance by, UBS and its counsel), none of (i) the name of UBS, (ii) any
advice rendered by UBS to the Company, or (iii) the terms of this Agreement or any communication
from UBS in connection with the services performed by UBS 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 the Company or any of its affiliates or any of their agents, without UBS’s prior written
consent.
5. Information. The Company recognizes and confirms that UBS (a) has used and relied
primarily on the information provided by the Company 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) has not assumed responsibility for
the accuracy, completeness or reasonableness of the Information and such other information and (c)
has not made an appraisal of any assets or liabilities (contingent or otherwise) of the Fund.
6. Not an Investment Advisor. The Company acknowledges that UBS has not provided any
advice hereunder as to the value of securities or regarding the advisability of
purchasing or selling any securities for the Fund’s portfolio. The Company acknowledges and
agrees that UBS has been retained to act solely as an advisor to the Company, and the Company’s
engagement of UBS is not intended to confer rights upon any person (including the Fund or any
shareholders, employees or creditors of the Company or the Fund) not a party hereto as against UBS
or its affiliates, or their respective directors, officers, employees or agents, successors, or
assigns. UBS has acted 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 the Company.
7. Not Exclusive. Nothing herein shall be construed as prohibiting you or your
affiliates from acting as an underwriter or financial advisor or in any other capacity for any
other persons (including other registered investment companies or other investment advisors).
8. Amendment; Waiver. No provision of this Agreement may be amended or waived except
by an instrument in writing signed by the parties hereto.
9. Governing Law. This 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. 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 consent to the jurisdiction of such courts
and personal service with respect thereto. EACH OF UBS 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.
10. 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 hereof.
11. Disclaimer of Liability of Beneficiaries. Notice hereby is given that this
Structuring Fee Agreement is executed on behalf of the Company by an officer of the Company in his
or her capacity as an officer of the Company and not individually and that the obligations under or
arising out of this Structuring Fee Agreement are not binding upon any of the officers or
shareholders individually, but are binding only upon the assets and properties of the Company.
[END OF TEXT]
This Agreement shall be effective as of the date first written above.
| XXXX XXXXXXX ADVISERS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted:
UBS SECURITIES LLC
By: |
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| Title: | ||||
By: |
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| Title: |
Indemnification Agreement
September [ ], 2007
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the
undersigned (the “Company”) with the matters set forth in the Structuring Fee Agreement dated
September [ ], 2007 between the Company and UBS (the “Agreement”), in the event that UBS 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 relating to or arising out of 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 harmless to the fullest extent
permitted by law, from and against any losses, claims, damages, liabilities and expenses in
connection with any such Proceeding, 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, bad faith or willful misconduct of UBS. In addition, in the
event that UBS becomes involved in any capacity in any such Proceeding, the Company will reimburse
UBS for its legal and other expenses (including the cost of any investigation and preparation) as
such expenses are incurred by UBS 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, 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 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 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 has been retained to perform services bears to the fees paid to UBS under the Agreement;
provided, that in no event shall the Company contribute less than the amount necessary to assure
that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the
amount of fees actually received by UBS 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, on the other hand. The
Company will not settle any Proceeding in respect of which indemnity may be sought hereunder,
whether or not UBS is an actual or potential party to such Proceeding, without UBS’s prior written
consent. For purposes of this Indemnification Agreement, UBS shall include UBS Securities LLC, any
of its affiliates, each other person, if any, controlling UBS Securities LLC 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 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’s 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 primarily from the gross negligence, bad
faith or willful misconduct of UBS in performing the services that are the subject of the
Agreement. Nothing in this Indemnification Agreement shall be read or construed to limit any
liability or obligation of any party arising under or in connection with the Underwriting
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 UBS 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 UBS OR ANY INDEMNIFIED PARTY. EACH OF UBS 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.
[END OF TEXT]
The foregoing Indemnification Agreement shall remain in full force and effect notwithstanding
any termination of UBS’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, XXXX XXXXXXX ADVISERS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted and agreed to as of
the date first above written:
the date first above written:
UBS SECURITIES LLC
By: |
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| Title: | ||||
By: |
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