Exhibit (k)(8)
FORM OF ADDITIONAL COMPENSATION AGREEMENT
ADDITIONAL COMPENSATION AGREEMENT (the "Agreement"), dated as of July
[_], 2007, between Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and Xxxxx Xxxxx Management ("Xxxxx Xxxxx").
WHEREAS, Xxxxx Xxxxx Risk-Managed Diversified Equity Income Fund
(including any successor by merger or otherwise, the "Fund") is a newly
organized, diversified, closed-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and its
common shares of beneficial interest (the "Common Shares") are registered under
the Securities Act of 1933, as amended;
WHEREAS, Xxxxx Xxxxx is the investment adviser of the Fund;
WHEREAS, Xxxxxxx Xxxxx is acting as an underwriter in an offering of
the Fund's Common Shares; and
WHEREAS, Xxxxx Xxxxx desires to provide additional compensation to
Xxxxxxx Xxxxx for providing the advice and services described below;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. In consideration of Xxxxxxx Xxxxx'x providing advice relating to the
structure and design and the organization of the Fund as well as
services related to the sale and distribution of the Fund's Common
Shares, Xxxxx Xxxxx shall pay Xxxxxxx Xxxxx a fee equal to [_]% of the
total price to the public of the Fund's Common Shares sold by Xxxxxxx
Xxxxx pursuant to the prospectus dated July [_], 2007 (the
"Prospectus") (including all Underwritten Securities and Option
Securities as such terms are described in the Underwriting Agreement,
dated July [_], 2007, by and among the Fund, Xxxxx Xxxxx, Rampart
Investment Management Company, Inc. and each of the Underwriters named
therein (the "Underwriting Agreement")) (the "Fee"). The Fee shall be
paid within 30 days of the Closing Date (as defined in the Underwriting
Agreement) in an amount equal to [_]% of the total price to the public
of the common shares sold by Xxxxxxx Xxxxx on such Closing Date, or as
otherwise agreed to by the parties. The Fee hereunder shall not exceed
[_]% of the total price to the public of the Fund's common shares sold
by Xxxxxxx Xxxxx pursuant to the Prospectus. The sum total of all
compensation to or reimbursement of Underwriters in connection with the
offering, including sales load, will be limited to not more than 9.0%
of the total price of the Fund's Common Shares sold by the Fund
pursuant to the Prospectus.
2. Xxxxx Xxxxx acknowledges that Xxxxxxx Xxxxx did not provide and 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's portfolio. No provision of this Agreement shall be
considered as creating, nor shall any provision create, any obligation
on the part of Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx 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 acting as a
underwriter in an offering of the Fund's Common Shares.
3. Nothing herein shall be construed as prohibiting Xxxxxxx Xxxxx or its
affiliates from acting as an underwriter to any other clients
(including other registered investment companies or other investment
advisers).
4. This Agreement shall terminate upon the payment of the entire amount of
the Fee, as specified in Section 1 hereof.
5. Xxxxx Xxxxx will xxxxxxx Xxxxxxx Xxxxx with such information as Xxxxxxx
Xxxxx believes appropriate to its assignment hereunder (all such
information so furnished being the "Information"). Xxxxx Xxxxx
recognizes and confirms that Xxxxxxx Xxxxx (a) has used and relied
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 furnished by Xxxxx Xxxxx was true and correct in all
material respects and did 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
Xxxxxxx Xxxxx if it learns of any material inaccuracy or misstatement
in, or material omission from, any Information delivered to Xxxxxxx
Xxxxx.
6. Xxxxx Xxxxx agrees that Xxxxxxx Xxxxx shall have no liability to Xxxxx
Xxxxx or the Fund for any act or omission to act by Xxxxxxx Xxxxx in
the course of its performance under this Agreement, in the absence of
gross negligence or willful misconduct on the part of Xxxxxxx Xxxxx.
Xxxxx Xxxxx agrees to the terms 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.
7. This 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") shall be governed by and construed in accordance
with the laws of the State of New York.
8. 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 Xxxxx Xxxxx and Xxxxxxx
Xxxxx consent to the jurisdiction of such courts and personal service
with respect thereto. Each of Xxxxxxx Xxxxx and Xxxxx Xxxxx waives all
right 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. Xxxxx Xxxxx agrees that a final judgment in any proceeding
or counterclaim brought in any such court shall be conclusive and
binding upon Xxxxx Xxxxx and may be enforced in any other courts to the
jurisdiction of which Xxxxx Xxxxx is or may be subject, by suit upon
such judgment.
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9. This Agreement may not be assigned by either party without the prior
written consent of the other party.
10. 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 Xxxxxxx Xxxxx
and Xxxxx Xxxxx.
11. All notices required or permitted to be sent under this Agreement shall
be sent, if to Xxxxx Xxxxx:
Xxxxx Xxxxx Management
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: [______________]
or if to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
New York, New York 10080
Attention: Xxxx Xxxxx
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.
12. This Agreement may be executed in separate counterparts, each of which
is deemed to be an original and all of which taken together constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Additional Compensation Agreement as of the date first above written.
XXXXX XXXXX MANAGEMENT XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: By:
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Name: Name:
Title: Title:
XXXXXXX XXXXX & CO. INDEMNIFICATION AGREEMENT
July [_], 2007
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") to advise and
assist the undersigned (together with its affiliates and subsidiaries, referred
to as the "Company") with the matters set forth in the Additional Compensation
Agreement dated July [_], 2007 between the Company and Xxxxxxx Xxxxx (the
"Agreement"), in the event that Xxxxxxx Xxxxx 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") 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, the Company agrees to indemnify, defend and hold
Xxxxxxx Xxxxx 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, 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 solely from the gross
negligence, bad faith or willful misconduct of Xxxxxxx Xxxxx. In addition, in
the event that Xxxxxxx Xxxxx 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, the
Company will reimburse Xxxxxxx Xxxxx for its legal and other expenses (including
the cost of any investigation and preparation) as such expenses are incurred by
Xxxxxxx Xxxxx 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 shareholders and affiliates and other constituencies, on
the one hand, and Xxxxxxx Xxxxx, 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 shareholders
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
shareholders 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 shareholders or
affiliates and other constituencies, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for
which Xxxxxxx Xxxxx has been retained to perform financial services bears to the
fees paid to Xxxxxxx Xxxxx under the Agreement; provided, that in no event shall
the Company contribute less than the amount necessary to assure that Xxxxxxx
Xxxxx is not liable for losses, claims, damages, liabilities and expenses in
excess of the amount of fees actually received by Xxxxxxx Xxxxx 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 Xxxxxxx
Xxxxx, on the other hand. The Company will not settle any Proceeding in respect
of which indemnity may be sought hereunder, whether or not Xxxxxxx Xxxxx is an
actual or potential party to such Proceeding, without Xxxxxxx Xxxxx'x prior
written consent. For purposes of this Indemnification Agreement, Xxxxxxx Xxxxx
shall include Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, any of its affiliates, each other person, if any, controlling
Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx'x
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 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 Xxxxxxx Xxxxx in performing the
services that are the subject of the Agreement. Nothing in this Indemnification
Agreement shall be read or construed to limit any liability or obligations of
any party arising under or in connection with the Underwriting Agreement.
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
INDEMNIFICATION 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 XXXXXXX XXXXX 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 INDEMNIFICATION AGREEMENT IS
BROUGHT BY ANY THIRD PARTY AGAINST XXXXXXX XXXXX OR ANY INDEMNIFIED PARTY.
EACH OF XXXXXXX XXXXX 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 INDEMNIFICATION AGREEMENT. THE COMPANY AGREES
THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM ARISING OUT OF OR IN ANY WAY
RELATING TO THIS INDEMNIFICATION 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.
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of Xxxxxxx Xxxxx'x 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:
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Name:
Title:
Accepted and agreed to as of
the date first written above:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:
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Name:
Title:
