STRUCTURING FEE AGREEMENT
September [__], 2015
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between First Trust Advisors L.P. (the "Adviser"),
Xxxxxxxxx Global Investors (North America) Inc. (the "Investment Sub-Adviser"),
Xxxxxxxxx Investment Management Limited (the "Sub-Sub-Adviser," and together
with the Adviser and the Investment Sub-Adviser, the "Companies") and Xxxxxx
Xxxxxxx & Co. LLC ("Xxxxxx Xxxxxxx") with respect to First Trust Dynamic Europe
Equity Income Fund (the "Fund").
1. Fee. (a) In consideration of advice to the Companies 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 common shares of
beneficial interest, par value $0.01 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 Companies shall pay a fee to Xxxxxx Xxxxxxx
calculated at 1.35% of the aggregate price to the public 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), equal to $[__] (the "Fee"), of which $[__] shall be paid
by the Adviser and $[__] shall be paid by the Investment Sub-Adviser. Subject to
paragraph (b), the Fee paid to Xxxxxx Xxxxxxx shall not exceed [__]% of the
total price to the public of the Shares sold by the Fund in the Offering. In the
event the Offering does not proceed, 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
principal underwriting agreement relating to the Offering (the "Underwriting
Agreement").
(b) Notwithstanding paragraph (a), in the event that a Company (or the
Fund or any person or entity affiliated with a 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
participating in the Offering (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 a percentage of the aggregate price to
the public 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 a percentage of the aggregate price to the public 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). For the avoidance of doubt,
Other Compensation shall not include compensation received by [__] relating to
Shares that were not sold by [__].
(c) The Companies shall pay the Fee to Xxxxxx Xxxxxxx on the closing of
the purchase and sale of the Shares pursuant to the Underwriting Agreement on
September [__], 2015, by wire transfer to the order of Xxxxxx Xxxxxxx using the
following wire instructions:
Citibank, N.A.
Account: Xxxxxx Xxxxxxx & Co.
Account #: 000-00-000
ABA #: 000-000-000
Attention: Xxxxx Xxxxx
Ref: First Trust Dynamic Europe Equity Income Fund
Please notify "xxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx" when the wire is sent.
(d) The Companies acknowledge 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 Companies 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 Companies 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
Companies or any of their affiliates or any of their agents, without Xxxxxx
Xxxxxxx'x prior written consent, except (i) a 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 reasonable 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 reasonable opinion of a Company's counsel it is not
legally able to so consult) and (iii) on a confidential need-to-know basis, to
the Fund and its officers and trustees 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 Companies 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 Companies' engagement of
Xxxxxx Xxxxxxx is not intended to confer rights upon any person (including the
Fund or any shareholders, employees or creditors of the Companies 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 Companies. In addition, nothing in this Agreement shall be construed to
constitute Xxxxxx Xxxxxxx as the agent or employee of the Companies or the
Companies 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
Companies 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 Companies or any other third party in
connection with its engagement hereunder, all of which are hereby expressly
waived to the extent the Companies have the authority to waive such duties and
liabilities.
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 COMPANIES
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 COMPANIES 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 COMPANIES, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY OTHER
COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE COMPANIES 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 Adviser:
000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: W. Xxxxx Xxxxxxx
or if to the Sub-Adviser or the Sub-Sub-Adviser:
Xxxxxxxxx Global Investors
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
with a copy to
Xxxxxxxxx Global Investors
000 Xxxxxxxxxxx, Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Legal Department
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. Delivery of an executed signature page
of this Agreement by facsimile or other electronic transmission that accurately
depicts a manual signature shall be effective as delivery of a manually executed
counterpart hereof.
This Agreement shall be effective as of the date first written above.
Very truly yours,
FIRST TRUST ADVISORS L.P.
By:
---------------------------------
Name:
Title:
XXXXXXXXX GLOBAL INVESTORS
(NORTH AMERICA) INC.
By:
---------------------------------
Name:
Title:
XXXXXXXXX INVESTMENT
MANAGEMENT LIMITED
By:
---------------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written:
XXXXXX XXXXXXX & CO. LLC
By:
---------------------------------
Name:
Title:
INDEMNIFICATION AGREEMENT
September [__], 2015
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 their respective
affiliates and subsidiaries, referred to as the "Companies") with the matters
set forth in the Structuring Fee Agreement dated September [__], 2015 between
the Companies 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 in connection 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 Companies have 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
Companies and an Indemnified Person relating to the common shares of beneficial
interest, par value $0.01 per share (the "Shares") of First Trust Dynamic Europe
Equity Income Fund (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
Companies 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 or gross negligence of any
Indemnified Person. The Companies also agrees that no Indemnified Person shall
have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Companies 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 Companies that are finally judicially determined to
have resulted from the bad faith or gross negligence of such Indemnified Person.
Notwithstanding the foregoing, in no event shall the Companies 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 Companies 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 Companies 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 Companies'
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
Companies agree 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 Companies (including the net
proceeds from the Shares sold by Xxxxxx Xxxxxxx in the Offering before deducting
expenses) and their 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 Companies and their 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 Companies agree that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Companies and their 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 Companies or their 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 Companies 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 Companies or other
conduct by the Companies (or their 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 agreement) that relate to the Offering, represents
the entire agreement between the Companies and the Indemnified Persons with
respect to the fee paid to Xxxxxx Xxxxxxx under the Fee Agreement.
The Companies acknowledge 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
Companies, the Fund or any person affiliated with the Fund or the Companies,
(ii) Xxxxxx Xxxxxxx owes the Companies 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 Companies. Each 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 COMPANIES 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 COMPANIES 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 COMPANIES, AS THE CASE MAY BE, AND MAY BE
ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE
COMPANIES 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. Delivery of an executed signature page of this
Indemnification Agreement by facsimile or other electronic transmission that
accurately depicts a manual signature shall be effective as delivery of a
manually executed counterpart hereof.
Very truly yours,
FIRST TRUST ADVISORS L.P.
By:
---------------------------------
Name:
Title:
XXXXXXXXX GLOBAL INVESTORS
(NORTH AMERICA) INC.
By:
---------------------------------
Name:
Title:
XXXXXXXXX INVESTMENT
MANAGEMENT LIMITED
By:
---------------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written:
XXXXXX XXXXXXX & CO. LLC
By:
---------------------------------
Name:
Title:
