STRUCTURING FEE AGREEMENT
[May 28], 2021
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between Xxxxxxxxx Xxxxxx Investment Advisers LLC (the “Company”) and Xxxxxx Xxxxxxx & Co. LLC (“Xxxxxx Xxxxxxx”) with respect to Xxxxxxxxx Xxxxxx Next Generation Connectivity Fund Inc. (the “Fund”).
1. Fee. (a) In consideration of advice to the Company
relating to, but not limited to, the design and structuring of, and marketing assistance with respect to, the Fund and the distribution of the Fund’s shares of common stock, par value $0.0001 per share (the “Shares”), including without limitation, views from an investor market and distribution perspective on (i) diversification, proportion and concentration approaches for the Fund’s investments in light of current
market conditions, (ii) marketing issues with respect to the Fund’s investment policies and proposed investments, (iii) the proportion of the Fund’s assets to invest in the Fund’s strategies and (iv) the overall marketing and positioning thesis for
the Fund’s initial public offering of its Shares (the “Offering”), the Company shall pay a fee to Xxxxxx Xxxxxxx calculated at [__]% of the aggregate price to the public of all
Shares sold by Xxxxxx Xxxxxxx in the Offering (including any Shares over-allotted by Xxxxxx Xxxxxxx in the Offering regardless of whether the over-allotment option in the Offering is exercised), equal to $[ ] (the “Fee”).
(b) In the event the Offering does not close pursuant to the terms of the principal underwriting agreement relating to the Offering (the “Underwriting
Agreement”), Xxxxxx Xxxxxxx will not receive any fees under this Agreement; however, for the avoidance of doubt, accountable expenses actually incurred may be payable to Xxxxxx Xxxxxxx pursuant to the terms of the Underwriting
Agreement.
(c) Notwithstanding paragraph (a), and excluding any compensation or agreement to compensate (whether such compensation be denominated as a fee, an expense reimbursement, a set-off, a credit or otherwise) BofA
Securities, Inc. (collectively with its affiliates, "BofA Securities"), as lead manager in the Offering, for syndication assistance (the "Syndication Fee"), in the event that the Company (or the Fund or any person or entity affiliated with the Company, the Fund or any sub-adviser to the Fund or acting on behalf of or at the direction of any of the
foregoing) compensates or agrees to compensate any other broker or dealer listed on Schedule A of the Underwriting Agreement (each, an “Other Broker”) for any services or
otherwise in connection with the Offering or with respect to the Fund or its Shares (excluding for this purpose any compensation paid directly to the entire underwriting syndicate, as a group, pursuant to the Underwriting Agreement), whether such
compensation be denominated a fee, an expense reimbursement, a set-off, a credit or otherwise (such compensation with respect to any Other Broker, such Other Broker’s “Other Compensation”),
then the amount of the Fee shall be increased as and to the extent necessary so that the Fee payable to Xxxxxx Xxxxxxx hereunder, expressed as (i) a dollar amount or (ii) a percentage of the aggregate price to the public, in the case of each of
clause (i) and (ii), of the Shares sold by Xxxxxx Xxxxxxx in the Offering (including any Shares over-allotted by Xxxxxx Xxxxxxx in the Offering regardless of whether the over-allotment option in the Offering is exercised), is no less than the Other
Compensation, expressed as (i) a dollar amount or (ii) a percentage of the aggregate price to the public, in the case of each of clause (i) and (ii), of the Shares sold by such Other Broker in the Offering (including any Shares over-allotted by such
Other Broker in the Offering regardless of whether the over-allotment option in the Offering is exercised, respectively).
Additionally, notwithstanding the above, if the Syndication Fee paid to or agreed to be paid to BofA Securities, as lead manager of the Offering, as determined on the basis of the aggregate price to the public of Common
Shares sold in the Offering by any Other Broker other than
[___] (including any Common Shares over-allotted by such Other Broker in the Offering regardless of whether the over-allotment option in the Offering is exercised), is calculated at a rate
greater than [__]% of such Common Shares, the amount of the Fee payable to Xxxxxx Xxxxxxx hereunder shall be increased by the additional amount of the Syndication Fee paid or payable to BofA Securities that results from such rate being greater than
[__]%.
(d) The Company shall pay the Fee to Xxxxxx Xxxxxxx at or before the Closing Time (as defined in the Underwriting Agreement) by wire transfer to the order of Xxxxxx Xxxxxxx using the following wire instructions:
Account:
Account #:
ABA #:
Attention:
Ref:
(e) The Company acknowledges that the Fee is in addition to any compensation Xxxxxx Xxxxxxx earns in connection
with its role as an underwriter to the Fund in the Offering, which services are distinct from and in addition to the services described above.
2. Term. This Agreement shall terminate upon payment of the
entire amount of the Fee, as specified in Section 1 hereof, or upon the termination of the Underwriting Agreement without the Shares having been delivered and paid for, except as provided in Sections 3 and 4.
3. Indemnification. The Company 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. Confidential Advice. None of any advice rendered by Xxxxxx
Xxxxxxx to the Company or any communication from Xxxxxx Xxxxxxx in connection with the services performed by Xxxxxx Xxxxxxx pursuant to this Agreement will be quoted or referred to orally or in writing, or reproduced or disseminated, by the Company
or any of its affiliates or any of their agents, without Xxxxxx Xxxxxxx’x prior written consent, except (i) the Company may disclose the foregoing to any regulatory authority in response to a regulatory proceeding, process, inquiry or request, so
long as the Company gives Xxxxxx Xxxxxxx prompt notice thereof unless in the opinion of the Company’s counsel it is not legally able to do so, (ii) to the extent otherwise required by law, judicial process or applicable regulation (after consultation
with, and approval (not to be unreasonably withheld) as to form and substance by, Xxxxxx Xxxxxxx and its counsel, unless in the opinion of the Company’s counsel it is not legally able to so consult) and (iii) to the Fund and its officers and
directors and their legal counsel, auditors and other advisors. This confidentiality provision will terminate eighteen months from the date first written above.
5. Not an Investment Adviser. The Company acknowledges that
Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx, and Xxxxxx Xxxxxxx is 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 Company’s engagement of Xxxxxx Xxxxxxx pursuant to this Agreement is not intended to confer rights upon any person (including the Fund or any
shareholders, employees or creditors of the Company or the Fund) not a party hereto as against Xxxxxx Xxxxxxx or its affiliates, or their respective directors, officers, employees or agents, successors, or assigns.
6. Not Exclusive. Nothing herein shall be construed as
prohibiting Xxxxxx Xxxxxxx or its affiliates from acting as an underwriter or financial advisor or in any other capacity for any other persons (including other registered investment companies or other investment managers). Neither this Agreement nor
the performance of the
services contemplated hereunder shall be considered to constitute a partnership, association or joint venture between Xxxxxx Xxxxxxx and the Company. In addition, nothing in this Agreement shall
be construed to constitute Xxxxxx Xxxxxxx as the agent or employee of the Company or the Company as the agent or employee of Xxxxxx Xxxxxxx, and neither party shall make any representation to the contrary. It is understood that Xxxxxx Xxxxxxx is
engaged hereunder solely to provide the services described above to the Company and that Xxxxxx Xxxxxxx is not acting as an agent or fiduciary of, and Xxxxxx Xxxxxxx shall not have any duties or liability to, the current or future partners or equity
owners of the Company or any other third party in connection with its engagement hereunder, all of which are hereby expressly waived to the extent the Company has the authority to waive such duties and liabilities. For the avoidance of doubt, and
subject to Section 1(c) hereof, it is acknowledged and agreed that the Company may pay compensation of any kind to any other person for services the same as, or similar to, the services provided by Xxxxxx Xxxxxxx hereunder.
7. Assignment. This Agreement may not be assigned by either
party without prior written consent of the other party.
8. Amendment; Waiver. No provision of this Agreement may be
amended or waived except by an instrument in writing signed by the parties hereto.
9. Governing Law; Consent to Jurisdiction; WAIVER OF JURY TRIAL. This
Agreement and any claim, counterclaim, dispute or proceeding 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 internal laws of the State of New York. 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 (and of the appropriate appellate courts therefrom), which courts shall have exclusive jurisdiction over the adjudication of such matters except as
provided below. Each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such Claim and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such Claim in any such court or that any such Claim brought in any such court has been brought in an inconvenient forum. Process in any such Claim may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party at the address provided in Section 11 shall be deemed effective service of
process on such party. EACH OF XXXXXX XXXXXXX 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. EACH OF XXXXXX
XXXXXXX AND 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 XXXXXX XXXXXXX AND THE COMPANY, AS THE CASE MAY BE,
AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE COMPANY ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.
10. Entire Agreement. 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.
11. Notices. All notices required or permitted to be sent
under this Agreement shall be sent, if to the Company:
Xxxxxxxxx Xxxxxx Investment Advisers LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: [ ]
or if to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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 by certified U.S. mail, postage prepaid, or when actually received, whether by hand,
express delivery service or facsimile or other electronic transmission, whichever is earlier.
12. 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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Very truly yours,
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XXXXXXXXX XXXXXX INVESTMENT ADVISERS LLC
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By:
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Name:
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Title:
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Accepted and agreed to as of the date first above written:
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XXXXXX XXXXXXX & CO. LLC
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By:
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Name:
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[Xxxxxx Xxxxxxx Structuring Fee Agreement]
INDEMNIFICATION AGREEMENT
[May 28], 2021
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxx Xxxxxxx & Co. LLC (“Xxxxxx Xxxxxxx”) 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 [May 28], 2021 between the Company and Xxxxxx Xxxxxxx
(the “Fee Agreement”), in the event that Xxxxxx Xxxxxxx 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, or arising out of or based upon, the Fee Agreement, including, without limitation, related services and activities prior to the date of the Fee Agreement, the Company has agreed to indemnify and hold harmless Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxx’x
affiliates and their respective officers, directors, employees and agents and each other person, if any, controlling Xxxxxx Xxxxxxx or any of Xxxxxx Xxxxxxx’x affiliates (Xxxxxx Xxxxxxx and each such other person being an “Indemnified Person”) from and against any losses, claims, damages or liabilities related to, arising out of or in connection with the activities (the “Activities”) performed by any Indemnified Person in connection with, or arising out of, or based upon, the Fee Agreement and/or any action taken by any Indemnified Person in connection therewith (including,
without limitation, any presentation given by the Company and an Indemnified Person relating to the shares of common stock, par value $0.0001 per share (the “Shares”), of
Xxxxxxxxx Xxxxxx Next Generation Connectivity Fund Inc. (the “Fund”), and will reimburse each Indemnified Person for all expenses (including fees and expenses of counsel) as they
are incurred in connection with investigating, preparing, pursuing or defending any Proceeding related to, arising out of or in connection with the Activities, whether or not pending or threatened and whether or not any Indemnified Person is a
party. The Company will not, however, be responsible for any losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith, gross negligence or willful misconduct of
any Indemnified Person. The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company related to, arising out of or in connection with the Activities, except
for any such liability for losses, claims, damages or liabilities incurred by the Company that are finally judicially determined to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnified Person.
Notwithstanding the foregoing, in no event shall the Company be responsible for any losses, claims, damages or liabilities to any Indemnified Person arising from any such Proceeding in excess of the gross proceeds
received by the Fund from the initial public offering of the Shares of the Fund (the “Offering”); provided, however, that the Company shall, as set forth above, indemnify and be
responsible for, regardless of the gross proceeds received by the Fund from the Offering, all expenses (including fees and expenses of counsel) incurred in connection with investigating, preparing, pursuing or defending any Proceeding related to,
arising out of or in connection with the Activities, whether or not pending or threatened and whether or not any Indemnified Person is a party, as set forth above.
The Company will not, without Xxxxxx Xxxxxxx’x prior written consent, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any Proceeding in respect of which indemnification may be
sought hereunder (whether or not any Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination includes a release of each Indemnified Person from any liabilities arising out of such Proceeding. No Indemnified
Person seeking indemnification, reimbursement or contribution under this agreement (the “Indemnification Agreement”) will, without the Company’s prior written consent, settle,
compromise, consent to the entry of any judgment in or otherwise seek to terminate any Proceeding.
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 (including the net proceeds from the Shares sold by Xxxxxx Xxxxxxx in the Offering before deducting expenses) and its equity holders and affiliates, on the one hand, and Xxxxxx
Xxxxxxx, on the other hand, in the matters contemplated by the Fee 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 equity holders 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 equity holders 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 by or paid to or contemplated to be received by or paid to the Company or its equity holders or affiliates,
as the case may be, as a result of or in connection with the transaction (whether or not consummated) for which Xxxxxx Xxxxxxx has been retained to perform financial services bears to the fees paid to Xxxxxx Xxxxxxx under the Fee Agreement; provided
that in no event shall the Company contribute less than the amount necessary to assure that Xxxxxx Xxxxxxx is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by Xxxxxx Xxxxxxx
pursuant to the Fee 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 Xxxxxx Xxxxxxx, on the other hand.
This Indemnification Agreement, together with the Fee Agreement, any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Indemnification Agreement) that relate to the
Offering, represents the entire agreement between the Company and the Indemnified Persons with respect to the fee paid to Xxxxxx Xxxxxxx under the Fee Agreement.
The Company acknowledges that in connection with the Offering and the services performed pursuant to the Fee Agreement: (i) Xxxxxx Xxxxxxx has acted at arm’s length, is not an agent of, and owes no fiduciary duties to,
the Company, the Fund or any person affiliated with the Fund or the Company, (ii) Xxxxxx Xxxxxxx owes the Company only those duties and obligations set forth in this Indemnification Agreement and the Fee Agreement and (iii) Xxxxxx Xxxxxxx may have
interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims any of the Company, the Fund or any person affiliated with the Fund or the Company may have against Xxxxxx Xxxxxxx arising
from an alleged breach of fiduciary duty in connection with the Offering or the services performed pursuant to the Fee Agreement.
The provisions of this Indemnification Agreement shall apply to the Activities and any modification thereof and shall remain in full force and effect regardless of any termination or the completion of Xxxxxx Xxxxxxx’x
services under the Fee Agreement.
This Indemnification Agreement may not be assigned by either party without prior written consent of the other party. No provision of this Indemnification Agreement may be amended or waived except by an instrument in
writing signed by the parties hereto. This Indemnification Agreement and any claim, counterclaim, dispute or proceeding 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 internal laws of the State of New York. 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 (and of the appropriate appellate courts therefrom), which courts
shall have exclusive jurisdiction over the adjudication of such matters except as provided below. Each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such
Claim and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such Claim in any such court or that any such Claim brought in any such court has been brought in
an inconvenient forum. Process in any such Claim may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party
at the address provided in Section 11 of the Fee Agreement shall be deemed
effective service of process on such party. EACH OF XXXXXX XXXXXXX 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. EACH OF XXXXXX XXXXXXX AND 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 XXXXXX XXXXXXX AND THE COMPANY, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE COMPANY ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH
JUDGMENT. This Indemnification 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]
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Very truly yours,
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XXXXXXXXX XXXXXX INVESTMENT ADVISERS LLC
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By:
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Name:
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Title:
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Accepted and agreed to as of the date first above written:
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XXXXXX XXXXXXX & CO. LLC
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By:
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