Exhibit 99.B-2(K)(vii)
FORM OF
ADDITIONAL COMPENSATION AGREEMENT
[ ], 2005
Wachovia Capital Markets, LLC
[ADDRESS]
[ADDRESS]
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated [ ], 2005 (the
"Underwriting Agreement"), by and among ING Global Equity Dividend and Premium
Income Fund, a closed-end management investment company (the "Fund"), ING
Investments, LLC ("ING Investments" or the "Advisor") and Wachovia Capital
Markets, LLC ("Wachovia Securities"), with respect to the issue and sale of the
Fund's common shares of beneficial interest, par value $0.01 per share (the
"Common Shares"), as described therein. Reference is also made to (i) the
Investment Management Agreement, dated [ ], 2005 (the "Investment Management
Agreement"), between ING Investments and the Fund and (ii) the registration
statement on Form N-2 regarding the Common Shares of the Fund (the "Registration
Statement"). Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Underwriting Agreement.
ING Investments hereby confirms its agreement with Wachovia Securities with
respect to the additional compensation referred to in the "Underwriting" section
of the Registration Statement, payable by ING Investments to Wachovia
Securities. ING Investments agrees to pay Wachovia Securities additional
compensation (the "Additional Compensation") as provided for in Section 2
hereof; provided that such Additional Compensation shall be an amount equal to
0.15% of the Fund's average weekly total managed assets (i.e., total assets of
the Fund (including any assets attributable to any Preferred Shares and
borrowings that may be outstanding) minus accrued liabilities (other than
liabilities representing borrowings) (the "Total Managed Assets") attributable
to the Common Shares sold by Wachovia Securities in the offering; and provided,
further, that such payments shall not exceed the "Maximum Additional
Compensation Amount" (as defined in Section 3 hereof). The Additional
Compensation shall be payable as set forth in Section 2 hereof.
SECTION 1. WACHOVIA SECURITIES.
(a) Within 60 days following the Closing Date, Wachovia Securities shall
prepare or cause to be prepared and provide to ING Investments the aggregate
purchase price to the public of the Common Shares sold by Wachovia Securities,
which shall be appended as Schedule A to this Additional Compensation Agreement.
Such Schedule A shall be prepared in good faith by Wachovia Securities and
subject to verification by ING Investments.
(b) ING Investments hereby employs Wachovia Securities, for the period and
on the terms and conditions set forth herein, to provide the following services
at the reasonable request of ING Investments:
(i) after-market support services designed to maintain the
visibility of the Fund on an ongoing basis;
(ii) relevant information, studies or reports regarding general
trends in the closed-end investment company and asset management industries, if
reasonably obtainable, and consult with representatives of ING Investments in
connection therewith; and
(iii) the provision of information to and consultation with ING
Investments with respect to applicable strategies designed to address market
value discounts, if any, with respect to the Fund.
SECTION 2. PAYMENT OF ADDITIONAL COMPENSATION.
(a) ING Investments shall pay the Additional Compensation, quarterly in
arrears, to Wachovia Securities in an amount equal to the amount attributable to
the Common Shares sold by Wachovia Securities in the offering multiplied by
0.0375% of the average weekly Total Managed Assets of the Fund for such quarter.
(b) All fees payable hereunder shall be paid to Wachovia Securities by
wire transfer of immediately available funds within 15 days following the end of
each calendar quarter to a bank account designated by Wachovia Securities. At
the time of each payment of Additional Compensation hereunder, ING Investments
shall deliver to Wachovia Securities a statement indicating the amount of the
average weekly Total Managed Assets of the Fund for such quarter on which such
payment was based.
(c) The initial payment of Additional Compensation hereunder shall be paid
with respect to the calendar quarter ending June 30, 2005. The initial payment
for the calendar quarter ending June 30, 2005, shall be pro rated for the period
March 31, 2005, through June 30, 2005. In the event that this Additional
Compensation Agreement terminates prior to the end of a calendar quarter, the
Additional Compensation required to be paid hereunder shall be due and payable
within 15 days following the termination hereof and shall be pro-rated in
respect of the period prior to such termination. Notwithstanding the foregoing,
if any payment hereunder would otherwise fall on a day which is not a business
day, it shall be due on the next day which is a business day. All fees payable
hereunder shall be in addition to any fees paid by the Manager pursuant to the
Underwriting Agreement.
SECTION 3. MAXIMUM ADDITIONAL COMPENSATION AMOUNT. The "Maximum
Additional Compensation Amount" payable by ING Investments to Wachovia
Securities hereunder shall be [_____]% of the aggregate initial offering price
of the Common Shares.
SECTION 4. TERM. This Additional Compensation Agreement shall continue
coterminously with and so long as the Investment Management Agreement remains in
effect between the Fund and ING Investments, or any similar investment
management agreement with a successor in interest or affiliate of ING
Investments remains in effect, as and to the extent that such investment
management agreement is renewed periodically in accordance with the Investment
Company Act of 1940, as amended. This Additional Compensation Agreement shall
terminate on the earliest to occur of (a) with respect to Wachovia Securities,
the payment by ING Investments to Wachovia Securities of the Maximum Additional
Compensation Amount, (b) with respect to the Fund, the dissolution and winding
up of the Fund and (c) with respect to ING Investments, the date on which the
Investment Management Agreement or other investment management agreement between
the Fund and ING Investments or any successor in interest to ING Investments,
including but not limited to an affiliate of ING Investments, shall terminate.
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SECTION 5. Except to the extent legally required (after consultation
with, and approval as to form and substance by, Wachovia Securities and its
counsel), none of (i) the name of Wachovia Securities, (ii) any advice rendered
by Wachovia Securities to ING Investments, or (iii) or any communication from
Wachovia Securities in connection with the services performed by Wachovia
Securities 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 ING
Investments or any of its affiliates or any of their agents, without Wachovia
Securities' prior written consent. Wachovia Securities hereby agrees to the use
of its name in the Registration Statement on Form N-2 (File No. 333-114333) of
the Fund.
SECTION 6. ING Investments will furnish Wachovia Securities with such
information as Wachovia Securities believes appropriate to its assignment (all
such information so furnished being the "Information"). ING Investments
recognizes and confirms that Wachovia 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
assumed responsibility for independently verifying the same, (b) does not assume
responsibility for the accuracy, completeness or reasonableness of the
Information and such other information and (c) will not make an appraisal of any
assets or liabilities (contingent or otherwise) of the Fund. ING Investments
represents that at any time Wachovia Securities is undertaking after market
support services, the publicly available information with respect to the Fund
made public by or at the direction of ING Investments or the Fund will not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein not misleading.
SECTION 7. NOT AN INVESTMENT ADVISER. ING Investments acknowledges that
Wachovia Securities is not providing any advice hereunder as to the value of
securities or regarding the advisability of purchasing or selling any securities
for the Fund. No provision of this Additional Compensation Agreement shall be
considered as creating, nor shall any provision create, any obligation on the
part of any Underwriter, and the Underwriters are 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. ING Investments
acknowledges and agrees that Wachovia Securities has been retained solely to
provide the services specified herein to ING Investments, and not to act as an
advisor to any other person, and ING Investments' engagement of Wachovia
Securities is not intended to confer rights upon any person (including the Fund
or shareholders, employees or creditors of ING Investments or the Fund) not a
party hereto as against Wachovia Securities or its affiliates, or its directors,
officers, employees or agents, successors, or assigns. Wachovia Securities shall
act 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 ING Investments.
SECTION 8. NOT EXCLUSIVE. Nothing herein shall be construed as
prohibiting any Underwriter or its respective affiliates from acting as such for
any other clients (including other registered investment companies or other
investment advisers).
SECTION 9. LIABILITY AND INDEMNIFICATION. ING Investments and Wachovia
Securities each agree 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.
SECTION 10. ASSIGNMENT. This Additional Compensation Agreement may not be
assigned by any party without the prior written consent of each other party.
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SECTION 11. AMENDMENT; WAIVER. No provision of this Additional
Compensation Agreement may be amended or waived except by an instrument in
writing signed by the parties hereto.
SECTION 12. GOVERNING LAW. This Additional Compensation Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York. No claim, counterclaim or dispute of any kind or nature whatsoever arising
out of or in any way relating to this Agreement ("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 ING Investments and
Wachovia Securities consent to the jurisdiction of such courts and personal
service with respect thereto. ING Investments and Wachovia Securities each waive
all rights to trial by jury in any proceeding (whether based upon contract, tort
or otherwise) in any way arising out of or relating to this Agreement.
SECTION 13. COUNTERPARTS. This Additional Compensation 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 Additional Compensation Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among ING
Investments and Wachovia Securities in accordance with its terms.
Very truly yours,
WACHOVIA CAPITAL MARKETS, LLC
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
ING INVESTMENTS LLC
By: ----------------------------
Name:
Title:
SCHEDULE A
AGGREGATE
NAME OF QUALIFYING PURCHASE PRICE TO PUBLIC PRO RATA
UNDERWRITER OF COMMON SHARES SOLD PERCENTAGE
----------------------------------------------------------------------------------
Wachovia Capital Markets, LLC $[______] [__]%
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WACHOVIA CAPITAL MARKETS, LLC INDEMNIFICATION AGREEMENT
[ ], 2005
Wachovia Capital Markets, LLC
[ADDRESS]
[ADDRESS]
In connection with the engagement of Wachovia Capital Markets, LLC
("Wachovia Securities") to provide services to the undersigned (the "Company")
as set forth in the Agreement dated [ ], 2005, between the Company and Wachovia
Securities (the "Agreement"), in the event that Wachovia 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") (i) in connection with
or arising out of any untrue statement or alleged untrue statement of a material
fact contained in information with respect to the Fund made pubic by or at the
direction of the Fund or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (ii) otherwise 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 Wachovia
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, (a) in the
case of clause (i) only, to the extent it shall be determined by a court of
competent jurisdiction that such losses claims, damages, liabilities and
expenses resulted from Wachovia Securities using, in a manner constituting gross
negligence or willful misconduct of Wachovia Securities, an outdated report or
information instead of a recent report or information made available to Wachovia
Securities that replaced the outdated report or information or (b) in the case
of clause (ii) only, to the extent it shall be determined by a court of
competent jurisdiction that such losses, claims, damages, liabilities and
expenses resulted from the gross negligence or willful misconduct of Wachovia
Securities. In addition, in the event that Wachovia 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
Wachovia Securities for its reasonable legal and other expenses (including the
cost of any investigation and preparation) as such expenses are incurred by
Wachovia 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, on the one hand, and Wachovia 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, 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, 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, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for
which Wachovia Securities has been retained to perform services bears to the
fees paid to Wachovia Securities under the Agreement; PROVIDED, that in no
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event shall the Company contribute less than the amount necessary to assure that
Wachovia Securities is not liable for losses, claims, damages, liabilities and
expenses in excess of the amount of fees actually received by Wachovia
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 Wachovia Securities, on the other hand. Promptly after
Wachovia Securities receives actual notice of the commencement of any Proceeding
in respect of which indemnification or reimbursement may be sought hereunder,
Wachovia Securities will notify the Company thereof; but the omission so to
notify the Company shall not relieve the Company from any obligation hereunder
unless, and only to the extent that, such omission results in the Company's
forfeiture of substantive rights or defenses. If any such action or other
proceeding shall be brought against Wachovia Securities, the Company shall, upon
written notice given reasonably promptly following Wachovia Securities' notice
to the Company of such Proceeding, be entitled to assume the defense thereof at
the Company's expense with counsel chosen by the Company and reasonably
satisfactory to Wachovia Securities; provided, however, that Wachovia Securities
may retain separate counsel to participate in such defense but the fees and
expenses of such counsel shall be at the expense of Wachovia Securities unless
the employment of such counsel shall have been authorized in writing by the
Company in connection with the defense of such Proceeding or the Company shall
not have, within a reasonable period of time in light of the circumstances,
employed counsel reasonably satisfactory to Wachovia Securities to have charge
of the defense of such Proceeding or Wachovia Securities shall have reasonably
concluded that there may be defenses available to it which are different from,
additional to or in conflict with those available to the Company (in which case
the Company shall not have the right to direct the defense of such Proceeding on
behalf of Wachovia Securities), in any of which events such fees and expenses
shall be borne by the Company and paid as incurred (it being understood,
however, that the Company shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction). The Company agrees that
it will not, without the prior written consent of Wachovia Securities, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened Proceeding in respect of which indemnification could be sought
under this Indemnification Agreement (whether or not Wachovia Securities is an
actual or potential party thereto), unless such settlement, compromise or
consent includes an unconditional release of Wachovia Securities from all
liability arising out of such Proceeding and does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
Wachovia Securities. For purposes of this Indemnification Agreement, Wachovia
Securities shall include Wachovia Capital Markets, LLC, any of its affiliates,
each other person, if any, controlling Wachovia 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 Wachovia 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 Wachovia 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 any such losses, claims, damages,
liabilities or expenses incurred by the Company resulted solely from the gross
negligence or willful misconduct of Wachovia Securities in performing the
services that are the subject of the Agreement.
Notwithstanding the foregoing or anything to the contrary in this
Agreement, the Company's indemnification obligations under this Agreement shall
not apply to any losses, claims, damages,
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liabilities, fines or expenses arising out of or relating to the
characterization of the compensation payable by the Company to Wachovia
Securities under the Agreement, including with respect to the characterization
of such compensation under applicable rules of the NASD, Inc.
For the avoidance of doubt, Wachovia Securities' underwriting activities on
behalf of the Company or its clients, including the Fund referred to in the
Agreement, shall not constitute a matter in any way relating to or referred to
in the Agreement or be deemed to arise out of matters contemplated by the
Agreement, and the Company's indemnification obligations hereunder shall not
apply to any Proceeding arising out of or relating to such underwriting
activities.
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 WACHOVIA SECURITIES 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 AND THIRD PARTY
AGAINST WACHOVIA SECURITIES OR ANY INDEMNIFIED PARTY. EACH OF WACHOVIA
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.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of Wachovia 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,
ING INVESTMENTS LLC
By:
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Name:
Title:
Accepted and agreed to as of
the date first above written:
WACHOVIA CAPITAL MARKETS, LLC
By:
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By:
Title:
By:
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By:
Title:
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