Exhibit 99.(h)(3)
MARKETING AND STRUCTURING FEE AGREEMENT
__, 2007
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This agreement is between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Inc. (the
"COMPANY") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") with respect
to the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Emerging Markets Domestic Debt Fund, Inc. (the "FUND").
1. Fee. (a) In consideration of advice to the Company relating to, but not
limited to, the design, structure, corporate finance and marketing of the Fund
and for assistance in connection with distribution of the Fund as a closed-end
investment company, the Company shall pay a fee to you calculated based on 1.25%
of the aggregate price to public of the common shares of beneficial interest of
the Fund sold by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the Fund's initial public offering (the
"OFFERING") (including any common shares of the Fund over-allotted by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ in the Offering regardless of whether the over-allotment option in the
Offering is exercised), equal to $__ (the "FEE").
(b) Notwithstanding Section 1(a), in the event that the Company (or the
Fund or any person or entity affiliated with the Company or the Fund or acting
on behalf of or at the direction of the Company or the Fund or any of its
affiliates) compensates or agrees to compensate any broker or dealer
participating in the Offering (each, an "OTHER BROKER") for any services or
otherwise in connection with the Offering or with respect to the Fund (excluding
for this purpose any compensation paid directly to the entire underwriting
syndicate, as a group, pursuant to the principal underwriting agreement relating
to the Offering), whether such compensation be denominated as a fee, an expense
reimbursement, a set-off, a credit or otherwise (such compensation with respect
to any Other Broker, such Other Broker's "OTHER COMPENSATION"), then the amount
of the Fee shall be increased as and to the extent necessary so that the Fee
payable to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereunder, expressed as a percentage of the aggregate
price to public of the common shares of the Fund sold by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the
Offering (including any common shares of the Fund over-allotted by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ in the Offering regardless of whether the over-allotment option in the
Offering is exercised), is no less than the Other Compensation, expressed as a
percentage of the aggregate price to public of the common shares of the Fund
sold by such Other Broker in the Offering.
(c) The Fee paid to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall not exceed __% of the total price
to the public of the common shares sold in the Offering. The Fee shall be paid
on or before __, 2007 and shall be made by wire transfer to the order of ▇▇▇▇▇▇
▇▇▇▇▇▇▇. The Company acknowledges that the Fee is in addition to any
compensation you earn in connection with your role as an underwriter to the Fund
in its initial public offering, which services are distinct from and in addition
to the market and structuring services described above.
2. Term. This Agreement shall terminate upon 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. Not an Investment Advisor. The Company 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.
5. 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 managers). Neither this Agreement nor the
performance of the services contemplated hereunder shall be considered to
constitute a partnership, association or joint venture between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and the Company. In addition, nothing in this Agreement shall be construed to
constitute ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the agent or employee of the Company or the Company
as the agent or employee of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and neither party shall make any
representation to the contrary. It is understood that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is engaged
hereunder solely to provide the services described above to the Company and that
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is not acting as an agent or fiduciary of, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
shall not have any duties or liability to, the current or future partners of the
Company or any other third party in connection with its engagement hereunder,
all of which are hereby expressly waived to the extent the Company has the
authority to waive such duties and liabilities.
6. Assignment. This Agreement may not be assigned by any party without
prior written consent of the other party.
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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 hereof.
This Agreement shall be effective as of the date first written above.
[END OF TEXT]
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT
INC.
By:
------------------------------------
Name:
Title:
Agreed and Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
INDEMNIFICATION AGREEMENT
__, 2007
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with the engagement of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") to advise and assist the undersigned (together with its
affiliates and subsidiaries, referred to as the "COMPANY") with the matters set
forth in the Marketing and Structuring Fee Agreement dated __, 2007 between the
Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "MARKETING AND STRUCTURING FEE AGREEMENT"), in
the event that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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) with
respect to the services performed pursuant to and in accordance with the
Marketing and Structuring Fee Agreement, the Company has agreed to indemnify and
hold harmless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ affiliates and their
respective officers, directors, employees and agents and each other person, if
any, controlling ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ affiliates (▇▇▇▇▇▇
▇▇▇▇▇▇▇ and each such other person being an "INDEMNIFIED PERSON") from and
against any losses, claims, damages or liabilities related to, arising out of or
in connection with the activities (the "ACTIVITIES") performed by any
Indemnified Person in connection with, or arising out of, or based upon, the
Marketing and Structuring Fee Agreement and/or any action taken by any
Indemnified Person in connection therewith (including, without limitation, any
presentation given by the Company and an Indemnified Person relating to the
shares of common stock (the "SHARES") of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Emerging Markets
Domestic Debt Fund, Inc. (the "FUND")), and will reimburse each Indemnified
Person for all expenses (including fees and expenses of counsel) as they are
incurred in connection with investigating, preparing, pursuing or defending any
claim, suit, action, proceeding, investigation or inquiry related to, arising
out of or in connection with the Activities, whether or not pending or
threatened and whether or not any Indemnified Person is a party. The Company
will not, however, be responsible for any losses, claims, damages, liabilities
(or expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of any Indemnified Person. The
Company also agrees that no Indemnified Person shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Company for or in
connection with the Activities, except for any such liability for losses,
claims, damages or liabilities incurred by the Company that are finally
judicially determined to have resulted from the bad faith or gross negligence of
such Indemnified Person.
Notwithstanding the foregoing, in no event shall the Company be responsible
for any losses, claims, damages or liabilities to any Indemnified Person arising
from any such claim, suit, action, proceeding, investigation or inquiry in
excess of the gross proceeds received by the Fund from the initial public
offering of the Shares of the Fund (the "OFFERING"); provided, however, that the
Company shall, as set forth above, indemnify and be responsible for, regardless
of the gross proceeds received by the Fund from the Offering, all expenses
(including fees and expenses of counsel) incurred in connection with
investigating, preparing, pursuing or defending any claim, suit, action,
proceeding, investigation or inquiry related to, arising out of or in connection
with the Activities, whether or not pending or threatened and whether or not any
Indemnified Person is a party, as set forth above.
The Company will not, without ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ prior written consent,
settle, compromise, consent to the entry of any judgment in or otherwise seek to
terminate any claim, suit, action, proceeding, investigation or inquiry in
respect of which indemnification may be sought hereunder (whether or not any
Indemnified Person is a party thereto) unless such settlement, compromise,
consent or termination includes a release of each Indemnified Person from any
liabilities arising out of such claim, suit, action, proceeding, investigation
or inquiry. No Indemnified Person seeking indemnification, reimbursement or
contribution under this agreement (the "INDEMNIFICATION AGREEMENT") will,
without our prior written consent, settle, compromise, consent to the entry of
any judgment in or otherwise seek to terminate any claim, suit, action,
proceeding, investigation or inquiry referred to in the preceding paragraph.
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 (including the net
proceeds from the Shares sold by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the Offering before deducting
expenses) and its partners and affiliates and other constituencies, on the one
hand, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on the other hand, in the matters contemplated by the
Marketing and Structuring Fee 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 partners 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 partners 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 or paid or contemplated to be received or paid by the Company or its
partners or affiliates and other constituencies, as the
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case may be, as a result of or in connection with the transaction (whether or
not consummated) for which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has been retained to perform financial
services bears to the fees paid to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under the Marketing and
Structuring Fee Agreement; provided that in no event shall the Company
contribute less than the amount necessary to assure that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is not
liable for losses, claims, damages, liabilities and expenses in excess of the
amount of fees actually received by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to the Marketing and
Structuring Fee 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on the other hand.
This Indemnification Agreement, together with the Marketing and Structuring
Fee Agreement, any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this agreement) that relate to the
Offering of the Shares, represents the entire agreement between the Company and
the Indemnified Parties with respect to the marketing and structuring fee paid
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under the Marketing and Structuring Fee Agreement.
The Company acknowledges that in connection with the Offering of the
Shares: (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has acted at arms length, is not an agent of, and
owes no fiduciary duties to, the Company, the Fund or any person affiliated with
the Fund or the Company, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ owes the Company only those duties
and obligations set forth in this Indemnification Agreement and (iii) ▇▇▇▇▇▇
▇▇▇▇▇▇▇ may have interests that differ from those of the Company. The Company
waives to the full extent permitted by applicable law any claims any of the
Company, the Fund or any person affiliated with the Fund or the Company may have
against ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ arising from an alleged breach of fiduciary duty in
connection with the offering of the Shares.
The provisions of this Indemnification Agreement shall apply to the
Activities and any modification thereof and shall remain in full force and
effect regardless of any termination or the completion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇
services under the Marketing and Structuring Fee Agreement.
This Indemnification Agreement may not be assigned by either party without
prior written consent of the other party. No provision of this Indemnification
Agreement may be amended or waived except by an instrument in writing signed by
the parties hereto. This Indemnification Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts executed in and to be performed in that state.
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This Indemnification 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 Indemnification Agreement by facsimile transmission shall be effective
as delivery of a manually executed counterpart hereof.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT
INC.
By:
------------------------------------
Name:
Title:
Accepted and agreed to as of the date
first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
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