Exhibit 99(k)(4)
SHAREHOLDER SERVICING AGREEMENT
SHAREHOLDER SERVICING AGREEMENT (the "Agreement"), dated as of September
[ ], 2005, between Xxxxx Xxxxx Management ("Xxxxx Xxxxx") and UBS Securities
LLC ("UBS Securities").
WHEREAS, Xxxxx Xxxxx Tax-Managed Global Buy-Write Opportunities 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 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 (the
"Services"):
(a) At the request of and as specified by Xxxxx Xxxxx, 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 arranging periodic seminars
or conference calls for Xxxxx Xxxxx to communicate to investors,
responding to questions from current or prospective shareholders and
contacting specific shareholders, where appropriate), provided that
Services shall not include customary market research information
provided by UBS Securities or its registered broker-dealer
affiliates in the ordinary course of their business.
(b) At the request of and as specified by Xxxxx Xxxxx, make available to
investors and prospective investors market price, net asset value,
yield and other information regarding the Fund (provided that
Services shall not include customary market research information
provided by UBS Securities or its registered broker-dealer
affiliates in the ordinary course of their business), 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, to 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. Except as legally required, such information and reports
may not be quoted or referred to, orally or in writing, reproduced
or disseminated by the
Fund or any of its affiliates or any of their agents, without the
prior written consent of UBS Securities, which consent will not be
unreasonably withheld.
(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 in Section 5 hereof, any such limitation or cessation
shall not relieve Xxxxx Xxxxx of its payment obligations pursuant to
Section 2 hereof.
(f) Except as otherwise may be prohibited by law or regulation or
restricted under non-disclosure, confidentiality or similar
obligations, UBS Securities will promptly notify Xxxxx Xxxxx or the
Fund, as the case may be, if the employees of UBS Securities that
have responsibility for preparing the written information for Xxxxx
Xxxxx or the Funds in connection with the performance of the
Services under this Agreement personally learned that such
information (except for forward looking information and/or
information relating to Xxxxx Xxxxx or the Fund) contained, at the
time it was made or published, a material inaccuracy; it being
understood that information shall not be deemed to contain a
material inaccuracy merely because such information has become
inaccurate or stale through the passage of time or through the
release or availability of new or updated information. Xxxxx Xxxxx
and the Fund acknowledge and agree that the information to be
provided under this Agreement is necessarily inherent to economic,
monetary, market and other conditions as in effect on the date
published and that there may be other information regarding the same
subject matter not available to UBS Securities on such date.
Notwithstanding anything herein to the contrary, Xxxxx Xxxxx and the
Fund further acknowledge and agree that UBS Securities is under no
obligation to review or independently verify any information to be
provided under this Agreement nor to conduct any due diligence
whatsoever or to update, revise or reaffirm such information. UBS
Securities is aware of the obligations under the federal and state
securities laws not to trade on the basis of material non-public
information.
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. Fees payable
hereunder shall be subject to the sales charge limits of the National
Association of
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Securities Dealer, Inc., and the total of all such fees shall not exceed
[ ]% of the aggregate offering price in the initial public offering of
the common shares of the Fund (the "Offering") (the "Maximum Fee Amount").
3. Xxxxx Xxxxx acknowledges that the 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, it
being understood between the parties hereto that any such advice,
recommendations or such similar activities if, and to the extent, agreed
to be performed by UBS Securities shall be the subject of a separate
agreement with Xxxxx Xxxxx, including, but not limited to, separate
agreements with respect to any indemnification of UBS Securities.
Except to the extent legally required (after consultation with UBS
Securities and its counsel, if reasonably possible), neither (i) the name
of UBS Securities nor (ii) any advice rendered by UBS Securities to Xxxxx
Xxxxx or the Fund in connection with the services performed by UBS
Securities pursuant to this Agreement will be quoted or referred to orally
or in writing, or in the case of (ii), reproduced or disseminated, by the
Fund or any of its affiliates or any of their agents, without the prior
written consent of UBS Securities, which consent will not be unreasonably
withheld.
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
advisers), so long as Services provided by UBS Securities to Xxxxx Xxxxx
and the Fund are not impaired thereby. In addition, nothing herein shall
be construed as prohibiting UBS Securities and its affiliates, in the
ordinary course of business, from trading the securities of the Fund for
its own account and for the accounts of customers or from holding at any
time a long or short position in such securities. Neither this Agreement
nor the performance of the Services hereunder shall be considered to
constitute a partnership, association or joint venture between UBS
Securities and Xxxxx Xxxxx. In addition, nothing herein shall be construed
to constitute UBS Securities as the agent or employee of Xxxxx Xxxxx or
Xxxxx Xxxxx as the agent or employee of UBS Securities, and neither party
shall make any representation to the contrary.
5. This Agreement shall continue coterminously with and so long as the
Investment Advisory Agreement, dated [ ], 2005, remains in
effect between the Fund and Xxxxx Xxxxx, or any similar investment
advisory agreement with a successor in interest or affiliate of Xxxxx
Xxxxx remains in effect, as, and to the extent, that such investment
advisory agreement is renewed periodically in accordance with the 1940
Act; provided, however, that this Agreement shall automatically terminate
if further payments to UBS Securities would cause the total amount of
underwriting compensation in connection with the Offering to exceed the
Maximum Fee Amount. This Agreement may not be assigned, except by
operation of law or in connection with the sale of all or substantially
all of the assets or of the equity securities of one of the parties
hereto, without the other party's prior consent.
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
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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. 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. UBS Securities acknowledges
that certain of the Information provided by Xxxxx Xxxxx may be proprietary
to Xxxxx Xxxxx and hereby agrees that it will not disclose (other than as
may be required by applicable law or regulatory proceeding) to any third
party any Information provided to UBS Securities by Xxxxx Xxxxx and
specifically identified in writing by Xxxxx Xxxxx, prior to or at the time
of its delivery, as confidential or proprietary.
7. It is understood that UBS Securities is being engaged hereunder as an
independent contractor solely to provide the Services described above to
Xxxxx Xxxxx and to the Fund and that UBS Securities is not acting as a
fiduciary of any person, and shall have no duties or liability to the
current or future shareholders of Xxxxx Xxxxx or any other third party in
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.
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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.
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, Xxxxxxxxxxxxx 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
the Trustees or beneficiaries individually but are binding only upon the
assets and properties of Xxxxx Xxxxx.
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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: _____________________________
By:
Title:
By: _____________________________
By:
Title:
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UBS Securities LLC Indemnification Agreement
September [ ], 2005
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In connection with the engagement of UBS Securities LLC ("UBS Securities")
to provide the Services to the undersigned (the "Company") as set forth in the
Shareholder Servicing Agreement dated September [ ], 2005, 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") (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 public by or as
authorized by the Fund (except for information regarding UBS Securities itself
that UBS Securities specifically provided to the Fund in writing for inclusion
in such information) 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 or arising out of the Agreement or the Services to be provided
thereunder, 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 or arising out of
the Agreement or the Services to be provided thereunder (a "Covered Claim"),
except, in the case of clause (ii) above only, 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, bad faith or willful misconduct of UBS Securities. In addition, in
the event that UBS Securities becomes involved in any capacity in any Proceeding
which relates to a Covered Claim, the Company will reimburse UBS Securities for
its legal and other expenses (including the reasonable 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,
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, on the one hand, and the party entitled to contribution, on the
other hand, as well as any other relevant equitable considerations; 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
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contribution agreement shall be in addition to any rights that any indemnified
party may have at common law or otherwise.
If any Proceeding is brought against UBS Securities in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
UBS Securities shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to UBS Securities
and payment of all fees and expenses; provided, however, that the omission to so
notify the Company shall not relieve the Company from any liability which the
Company may have to UBS Securities or otherwise, unless and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the Company. UBS Securities shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
of UBS 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 to have charge of the defense of
such Proceeding or UBS 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 UBS
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 shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless UBS Securities from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time UBS
Securities shall have requested the Company to reimburse UBS Securities for fees
and expenses of counsel as contemplated by the second sentence of this
paragraph, then the Company agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by the Company of the
aforesaid request, (ii) the Company shall not have reimbursed UBS Securities in
accordance with such request prior to the date of such settlement and (iii) UBS
Securities shall have given the Company at least 30 days' prior notice of its
intention to settle.
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 a Covered Claim, 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, bad faith or willful
misconduct of UBS Securities in performing the Services.
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 COMPANY HEREBY
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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.
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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: ___________________________
By:
Title:
By: ___________________________
By:
Title:
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