Exhibit (k)(5)
STRUCTURING FEE AGREEMENT
November ____, 2006
Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date hereof (the
"Underwriting Agreement"), by and among Xxxxx Xxxxx Tax-Managed Premium and
Dividend Income Fund (the "Fund"), Xxxxx Xxxxx Management (the "Adviser") 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 to the
Advisor 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, the Adviser shall pay a fee to you in the aggregate amount of
$____________ (the "Fee"). The Fee shall be paid by wire transfer to the order
of Wachovia Capital Markets, LLC.
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 hereof.
10. Disclaimer of Liability of Trustees and Beneficiaries. A copy of the
Agreement and Declaration of Trust of each of the Fund and the Adviser is on
file with the Secretary of State of The Commonwealth of Massachusetts, and
notice hereby is given that this Structuring Fee Agreement is executed on behalf
of the Fund and the Adviser, respectively, by an officer or Trustee of the Fund
or the Adviser, as the case may be, in his or her capacity as an officer or
Trustee of the Fund or the Adviser, as the case may be, and not individually and
that the obligations under or arising out of this Structuring Fee Agreement are
not binding upon any of the Trustees, officers or shareholders individually but
are binding only upon the assets and properties of the Fund or the Adviser, as
the case may be.
[END OF TEXT]
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This Agreement shall be effective as of the date first written above.
XXXXX XXXXX MANAGEMENT
By:
------------------------------------
Name:
Title:
Agreed and Accepted:
WACHOVIA CAPITAL MARKETS, LLC
By:
--------------------------------
Name:
Title:
[Structuring Fee Agreement]
INDEMNIFICATION AGREEMENT
November ___, 2006
Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Wachovia Capital Markets, LLC (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 November ___, 2006 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 Bank under this paragraph, notify the Company in writing of the
commencement thereof; but the failure so to notify the Company (i) will not
relieve the Company from liability under this paragraph unless and to the extent
the Company 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 reasonably
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 one separate counsel (in addition to any 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) the
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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. In no event shall the Company be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for the Bank and/or the other
Underwriters (as defined in the Underwriting Agreement) (taken as a group) that
have entered into a structuring fee agreement, an additional compensation
agreement or similar agreement pursuant to which the Company pays additional
compensation to the respective Underwriter in connection with the offering
contemplated in the Underwriting Agreement, in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
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, 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, 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 or paid or
contemplated to be received or paid by the Company or its stockholders or
affiliates, 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 Act) 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 (which consent shall not be
unreasonably withheld). 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
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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 will not be liable to the Bank for any such losses, claims,
damages, liabilities or expenses arising from the sale of securities by Xxxxx
Xxxxx Tax-Managed Premium and Dividend Income Fund to any person if a copy of a
prospectus required to be delivered in connection with such sale which has been
furnished to the underwriters of the offering of the securities (within a
reasonable amount of time prior to such sale) shall not have been sent, mailed
or given to such person, at or prior to the written confirmation of the sale of
such securities to such person, but only if and to the extent that such
prospectus, if so sent or delivered, would have cured the defect giving rise to,
and been a complete defense against the person asserting, such loss, claim,
damage or liability.
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 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
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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 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:
WACHOVIA CAPITAL MARKETS, LLC
By:
-------------------------------
Name:
Title:
[Structuring Fee Agreement]
