STRUCTURING FEE AGREEMENT
[May 28], 2021
Xxxxx Fargo Securities, LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated [May 25], 2021 (the “Underwriting Agreement”), by and among
Xxxxxxxxx Xxxxxx Next Generation Connectivity Fund Inc. (the “Fund”), Xxxxxxxxx Xxxxxx Investment Advisers LLC (the “Advisor”) and each of the Underwriters named in
Schedule A therein (the “Underwriters”), with respect to the issue and sale of the Fund’s shares of common stock (the “Offering”), 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 assisting the Advisor
with respect to the structure and design of the Fund, including, without limitation, services related to the sale and distribution of the Fund’s Common Stock, the Advisor shall pay a fee to you in the aggregate amount of $[ ] (the “Fee”). The Advisor shall pay the Fee to you at or before the Closing Time by wire transfer to the order of Xxxxx Fargo Securities, LLC using the following wire instructions:
Bank:
ABA#:
Account Name:
Account#:
Attn:
Reference:
In the event the Offering does not proceed, you will not receive any fees other than accountable expenses actually incurred; however, for the avoidance of
doubt, accountable expenses actually incurred may be payable to Xxxxx Fargo Securities, LLC solely pursuant to the terms of the Underwriting Agreement (and not hereunder).
2. Term. This Agreement shall terminate upon the payment of the
entire amount of the Fee, as specified in Section 1 hereof, or upon the termination of the Underwriting Agreement without the Common Stock having been delivered and paid for.
3. Indemnification. The Advisor 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 Advisor
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 Advisor 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 Advisor agrees that it is solely responsible for making its own judgment in connection with the matters covered by this Agreement (irrespective of whether you have advised or are currently advising the Advisor 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 advisers). Nothing herein shall be construed as
prohibiting the Advisor from paying compensation of any kind to any other person for services the same as, or similar to, the services provided by Xxxxx Fargo Securities, LLC hereunder, and for services relating to (i) securing syndicate
participants in the Fund’s initial public offering, (ii) preparation, marketing and diligence materials of the Underwriters, (iii) conveying information and marketing updates to the Underwriters and (iv) coordinating syndicate orders in the
Offering.
6. Assignment. This Agreement may not be assigned by either 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. Counterparts may be delivered via facsimile, electronic mail (including any electronic covered by the U.S. federal ESIGN Act
of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
[Signature page follows]
This Agreement shall be effective as of the date first written above.
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[Xxxxx Fargo Structuring Fee Agreement]
Indemnification Agreement
[May 28], 2021
Xxxxx Fargo Securities, LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxx Fargo Securities, LLC (the “Bank”) to assist the undersigned, Xxxxxxxxx
Xxxxxx Investment Advisers LLC (the “Company”), with respect to the matters set forth in the Structuring Fee Agreement dated [May 28], 2021 between the Company and the Bank (the “Agreement”), in the event that 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, or the successors
or assigns of any of the foregoing persons (the Bank and each such other person or entity being referred to as an “Indemnified Party”) 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 each Indemnified Party harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses, including the reasonable
fees and expenses of counsel to the Indemnified Parties, 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, bad faith or willful misconduct of the Bank. The Indemnification
provided hereunder shall not extend to those matters indemnified under the Underwriting Agreement, dated [May 25], 2021, by and among Xxxxxxxxx Xxxxxx Next Generation Connectivity Fund Inc., the Company and each of the underwriters named therein. In
addition, in the event that an Indemnified Party 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 such Indemnified Party for its
reasonable legal and other expenses (including the cost of any investigation and preparation) as such expenses are incurred by such Indemnified Party in connection therewith, 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 legal and other expenses resulted primarily from the gross negligence, bad faith or willful misconduct of the Bank. Promptly as
reasonably practicable after receipt by an Indemnified Party of notice of the commencement of any Proceeding, such Indemnified Party will, if a claim in respect thereof is to be made under this paragraph, notify the Company in writing of the
commencement thereof; but the failure to so notify the Company (i) will not relieve the Company from liability under this paragraph to the extent it is not materially prejudiced as a result thereof and (ii) in any event shall not relieve the Company
from any liability which it may have otherwise than on account of this Indemnification Agreement. Counsel to the Indemnified Parties shall be selected by the Bank and the Bank will notify the
Company of its selection of counsel as promptly as reasonably practicable following such selection. An indemnifying party may participate at its own expense in the defense of
any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Parties) also be counsel to the
Indemnified Party. No indemnifying party shall, without the prior written consent of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought hereunder (whether or not the Indemnified Parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Party.
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 members 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 members and affiliates, on the one hand, and the Bank, 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 members and affiliates, on the one hand, and the Bank, 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 the Company or its members 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 Indemnified Parties are 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, an Indemnified Party shall not be entitled to contribution from the Company if it is determined that such Indemnified Party was guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of
1933, as amended) 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 an Indemnified Party is an actual or potential
party to such Proceeding, without the Bank’s prior written consent (which consent shall not be unreasonably withheld). 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 no Indemnified Party 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, bad faith 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 INDEMNIFIED PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY AND THE INDEMNIFIED PARTIES HEREBY CONSENT 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 INDEMNIFIED PARTY
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 AND THE INDEMNIFIED PARTIES AGREE 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 OR
THE INDEMNIFIED PARTIES IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.
The foregoing Indemnification Agreement shall remain in full force and effect notwithstanding any termination of the Bank’s engagement under the
Agreement. 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. Counterparts may be delivered via facsimile, electronic
mail (including any electronic covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx) or other transmission method and any
counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature page follows]
This Agreement shall be effective as of the date first written above.
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XXXXXXXXX XXXXXX INVESTMENT ADVISERS LLC | ||
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| XXXXX FARGO SECURITIES, LLC |
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[Xxxxx Fargo Indemnification Agreement]
