Exhibit (k)(5)
FORM OF STRUCTURING FEE AGREEMENT
July [__], 2007
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between Xxxxx Xxxxx Management (the "Company") and UBS
Securities LLC ("UBS") with respect to the Xxxxx Xxxxx Risk-Managed Diversified
Equity Income Fund (the "Fund").
1. Fee. In consideration of certain financial advisory services that UBS
has provided to the Company in assisting the Company in structuring and
organizing the Fund, the Company shall pay a fee to UBS of $[__________] (the
"Fee"). The Fee shall be paid promptly upon the closing of the initial public
offering of the Fund.
2. Term. This Agreement shall terminate upon the payment of the entire
amount of the Fee, as specified in Section 1 hereof.
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. Except to the extent legally required (after
consultation with, and, in the case of UBS' advice, approval (not to be
unreasonably withheld) as to form and substance by, UBS and its counsel), none
of (i) the name of UBS, (ii) any advice rendered by UBS to the Company, or (iii)
the terms of this Agreement or any communication from UBS in connection with the
services performed by UBS pursuant to this Agreement will be quoted or referred
to orally or in writing, or in the case of (ii) and (iii), reproduced or
disseminated, by the Company or any of its affiliates or any of their agents,
without UBS' prior written consent, which consent will not be unreasonably
withheld in the case of clause (i) and (iii) (but not (ii)).
5. Information. The Company recognizes and confirms that UBS (a) has used
and relied primarily on the information provided by the Company and on
information available from generally recognized public sources in performing the
services contemplated by this Agreement without having assumed responsibility
for independently verifying the same, (b) has not assumed responsibility for the
accuracy, completeness or reasonableness of such information and (c) has not
made an appraisal of any assets or liabilities (contingent or otherwise) of the
Fund.
6. Not an Investment Advisor. The Company acknowledges that you have not
provided any advice hereunder as to the value of securities or regarding the
advisability of purchasing or selling any securities for the Fund's portfolio.
The Company acknowledges and agrees that UBS has been retained to act solely as
an advisor to the Company, and the Company's engagement of UBS 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
UBS or its affiliates, or their respective directors, officers, employees or
agents, successors, or assigns. UBS has acted as an independent contractor under
this Agreement, and not in any other capacity including as a fiduciary, and any
duties arising out of its engagement shall be owed solely to the Company.
7. Not Exclusive. Nothing herein shall be construed as prohibiting you or
your 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).
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. 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"), directly or indirectly, shall be governed by and construed
in accordance with the 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, which courts shall have exclusive
jurisdiction over the adjudication of such matters, and the Company and UBS
consent to the jurisdiction of such courts and personal service with respect
thereto. EACH OF UBS 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.
10. 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 transmission shall be effective as delivery of a
manually executed counterpart hereof.
[END OF TEXT]
This Agreement shall be effective as of the date first written above.
XXXXX XXXXX MANAGEMENT
By:
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Name:
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Title:
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Agreed and Accepted:
UBS SECURITIES LLC
By:
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Name:
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Title:
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By:
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Name:
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Title:
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INDEMNIFICATION AGREEMENT
July [__], 2007
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of UBS Securities LLC ("UBS") to advise
and assist the undersigned (the "Company") with the matters set forth in the
Structuring Fee Agreement dated July [__], 2007 between the Company and UBS (the
"Agreement"), in the event that the UBS 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 relating to or
arising out of the Agreement, including, without limitation, related services
and activities prior to the date of the Agreement, the Company agrees to
indemnify, defend and hold the UBS harmless to the fullest extent permitted by
law, from and against any losses, claims, damages, liabilities and expenses in
connection with any such Proceeding, 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 or willful misconduct (including bad faith) of the UBS. In
addition, in the event that the UBS becomes involved in any capacity in any such
Proceeding, the Company will reimburse the UBS for its legal and other expenses
(including the cost of any investigation and preparation) as such expenses are
incurred by the UBS 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 and affiliates and other constituencies, on
the one hand, and the UBS, 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 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
stockholders 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 stockholders 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 the UBS
has been retained to perform services bears to the fees paid to the UBS under
the Agreement; provided, that in no event shall the Company contribute less than
the amount necessary to assure that the UBS is not liable for losses, claims,
damages, liabilities and expenses in excess of the amount of fees actually
received by the UBS 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 UBS, on the other hand. The Company will not settle any Proceeding in
respect of which indemnity may be sought hereunder, whether or not the UBS is an
actual or potential party to such Proceeding, without the UBS' prior written
consent. For purposes of this Indemnification Agreement, the UBS shall include
the UBS Securities LLC, any of its affiliates, each other person, if any,
controlling the UBS Securities LLC 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 the UBS 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 UBS' 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 primarily from the gross negligence or
willful misconduct of the UBS 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 UBS 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 AGREEMENT IS
BROUGHT BY ANY THIRD PARTY AGAINST THE UBS OR ANY INDEMNIFIED PARTY. EACH OF THE
UBS 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.
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of the UBS' 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:
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Title:
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Accepted and agreed to as of
the date first above written:
UBS SECURITIES LLC
By:
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Name:
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Title:
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By:
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Name:
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Title:
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