EXHIBIT 99.2(h)(iii)
ADDITIONAL COMPENSATION AGREEMENT
ADDITIONAL COMPENSATION AGREEMENT (the "Agreement"), dated as of December [
], 2004 between Wachovia Capital Markets, LLC ("Wachovia") and Claymore
Advisors, LLC ("Claymore").
WHEREAS, Fiduciary/Claymore MLP Opportunity Fund (including any successor
by merger or otherwise) (the "Fund") is a non-diversified, closed-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), and its common shares are registered under the
Securities Act of 1933, as amended; and
WHEREAS, Claymore is the investment adviser of the Fund;
WHEREAS, Wachovia is acting as an underwriter in an offering of the Fund's
common shares;
WHEREAS, Claymore desires to provide additional compensation to Wachovia
for acting as an underwriter in an offering of the Fund's common shares; and
WHEREAS, Claymore desires to retain Wachovia to provide after-market
support services designed to maintain the visibility of the Fund on an ongoing
basis, and Wachovia is willing to render such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. (a) Claymore hereby employs Wachovia, for the period and on the terms and
conditions set forth herein, to provide the following services at the
reasonable request of Claymore:
(1) after-market support services designed to maintain the visibility
of the Fund on an ongoing basis;
(2) relevant information, studies or reports regarding general trends
in the closed-end investment company and asset management
industries, if reasonably obtainable, and consult with
representatives of Claymore in connection therewith; and
(3) information to and consultation with Claymore with respect to
applicable strategies designed to address market value discounts,
if any.
(b) At the request of Claymore, Wachovia shall limit or cease any action or
service provided hereunder to the extent and for the time period
requested by Claymore; provided, however, that pending termination of
this Agreement as provided for in Section 5 hereof, any such limitation
or cessation shall not relieve Claymore of its payment obligations
pursuant to Section 2 hereof.
(c) Wachovia will promptly notify Claymore if it learns of any material
inaccuracy or misstatement in, or material omission from, any written
information, as of the date such information was published, provided by
Wachovia to Claymore in connection with the performance of services by
Wachovia under this Agreement.
2. Claymore shall pay Wachovia a fee computed weekly and payable quarterly in
arrears commencing December [31], 2004 at an annualized rate of 0.15% of
the Fund's Managed Assets (as defined below) attributable to the common
shares sold by Wachovia in this offering for a term
as described in Section 6 hereof; provided that the total amount of the fee
hereunder shall not exceed [ ]% of the total price to the public of the
Fund's common shares offered by the prospectus dated December [ ], 2004
(the "Prospectus") (including all Initial Securities and Option Securities
as such terms are described in the Purchase Agreement, dated December
[ ], 2004, by and among the Fund, Claymore and each of the Underwriters
named therein (the "Purchase Agreement")). The sum total of this fee, any
additional compensation fees payable to X.X. Xxxxxxx & Sons, Inc., [ ]
plus the amount of the expense reimbursement of $.04 per common share
payable by the Fund to the underwriters pursuant to the Purchase Agreement
shall not exceed 4.5% of the total price to the public of the Fund's common
shares offered by the Prospectus. "Managed Assets" is defined as the total
assets of the Fund, including the assets attributable to the proceeds from
any financial leverage, minus liabilities, other than liabilities related
to any financial leverage. All quarterly fees payable hereunder shall be
paid to Wachovia within 15 days following the end of each calendar quarter.
3. Claymore shall be permitted to discharge all or a portion of its payment
obligations hereunder upon prepayment in full or in part of the remaining
balance due of the maximum additional commission amount described in
Section 2 above.
4. Claymore acknowledges that the services of Wachovia provided for hereunder
do not include any advice 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 Wachovia, and
Wachovia 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 providing the services
described in Section 1 hereof.
5. Nothing herein shall be construed as prohibiting Wachovia or its affiliates
from providing similar or other services to any other clients (including
other registered investment companies or other investment managers), so
long as Wachovia's services to Claymore are not impaired thereby.
6. The term of this Agreement shall commence upon the date referred to above
and shall be in effect so long as Claymore acts as the investment manager
to the Fund pursuant to the Investment Management Agreement (as such term
is defined in the Purchase Agreement) or other subsequent advisory
agreement.
7. Claymore will furnish Wachovia with such information as Wachovia believes
appropriate to its assignment hereunder (all such information so furnished
being the "Information"). Claymore recognizes and confirms that Wachovia
(a) will use and rely 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. To the best
of Claymore's knowledge, the Information to be furnished by Claymore when
delivered, will be true and correct in all material respects and will not
contain any material misstatement of fact or omit to state any material
fact necessary to make the statements contained therein not misleading.
Claymore will promptly notify Wachovia if it learns of any material
inaccuracy or misstatement in, or material omission from, any Information
delivered to Wachovia.
8. Claymore agrees that Wachovia shall have no liability to Claymore or the
Fund for any act or omission to act by Wachovia in the course of its
performance under this Agreement, in the
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absence of gross negligence or willful misconduct on the part of Wachovia.
Claymore agrees to the indemnification and other agreement 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.
9. 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.
10. 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 Claymore and Wachovia consent to the
jurisdiction of such courts and personal service with respect thereto. Each
of Wachovia and Claymore 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. Claymore agrees that a final
judgment in any proceeding or counterclaim brought in any such court shall
be conclusive and binding upon Claymore and may be enforced in any other
courts to the jurisdiction of which Claymore is or may be subject, by suit
upon such judgment.
11. This Agreement may not be assigned by either party without the prior
written consent of the other party.
12. 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 Wachovia and Claymore.
13. All notices required or permitted to be sent under this Agreement shall be
sent, if to Claymore:
Claymore Advisors, LLC
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
or if to Wachovia:
Wachovia Capital Markets, LLC
0 Xxxxx Xxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx 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 US mail with certified postage prepaid or when
actually received, whether by hand, express delivery service or facsimile
transmission, whichever is earlier.
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14. 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.
CLAYMORE ADVISORS, LLC WACHOVIA CAPITAL MARKETS, LLC
By: By:
----------------------------- -------------------------
Name: Name:
Title: Title:
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WACHOVIA CAPITAL MARKETS, LLC INDEMNIFICATION AGREEMENT
December [ ], 2004
Wachovia Capital Markets, LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Wachovia Capital Markets, LLC
("Wachovia") to advise and assist the undersigned (together with its affiliates
and subsidiaries, referred to as the "Company") with the matters set forth in
the Agreement dated December [ ], 2004 between the Company and Wachovia (the
"Agreement"), in the event that Wachovia 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 Wachovia
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 or
willful misconduct of Wachovia. In addition, in the event that Wachovia 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 Wachovia for its legal
and other expenses (including the cost of any investigation and preparation) as
such expenses are incurred by Wachovia 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 Wachovia, 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 Wachovia
has been retained to perform financial services bears to the fees paid to
Wachovia under the Agreement; provided, that in no event shall the Company
contribute less than the amount necessary to assure that Wachovia is not liable
for losses, claims, damages, liabilities and expenses in excess of the amount of
fees actually received by Wachovia 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 Wachovia, on the other hand. The Company
will not settle any
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Proceeding in respect of which indemnity may be sought hereunder, whether or not
Wachovia is an actual or potential party to such Proceeding, without Wachovia's
prior written consent. For purposes of this Indemnification Agreement, Wachovia
shall include Wachovia Capital Markets, LLC., any of its affiliates, each other
person, if any, controlling Wachovia 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 Wachovia 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 Wachovia's 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 or
willful misconduct of Wachovia 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 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. 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 WACHOVIA 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
WACHOVIA OR ANY INDEMNIFIED PARTY. EACH OF WACHOVIA 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.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of Wachovia's 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,
CLAYMORE ADVISORS, LLC
By:
-------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
WACHOVIA CAPITAL MARKETS, LLC
By
----------------------
Name:
Title:
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