STRUCTURING FEE AGREEMENT
Exhibit 99(h)(iv)(ii)
January
[ • ], 2011
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated January
[ • ], 2011 (the “Underwriting
Agreement”), by and among The Gabelli Natural Resources,
Gold & Income Trust, Gabelli Funds, LLC and each of
the Underwriters named in Schedule I thereto, with respect
to the issue and sale of the Fund’s Common Shares (the
“Offering”), as described therein. Capitalized terms
used herein and not otherwise defined shall have the meanings
given to them in the Underwriting Agreement.
1. Fee. In consideration of your
services in offering advice relating to the structure, design
and organization of the Fund and the distribution of its common
shares of beneficial interest, par value $0.001 per share (the
“Common Shares”), which may but need not necessarily
include 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 and (iii) the overall marketing and positioning
thesis for the Fund’s initial public offering, which
services may be completed by your affiliate in your sole
discretion, the Adviser shall pay a fee to you in the aggregate
amount of $[ • ] (the “Fee”). The Fee
shall be paid before the closing of the purchase and sale of the
Common Shares pursuant to the Underwriting Agreement on January
[ • ], 2011. The payment shall be made by wire
transfer to the order of Citigroup Global Markets Inc. The
Adviser acknowledges that the Fee is in addition to any
compensation you earn in connection with your role as an
underwriter to the Fund in the Offering, which services are
distinct from and in addition to the marketing and structuring
services described above. In the event the Offering does not
proceed, you will not receive any fees under this Agreement;
however, for the avoidance of doubt, accountable expenses
actually incurred may be payable to you pursuant to the terms of
the Underwriting Agreement.
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 Adviser
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. Not an Investment Adviser; No Fiduciary
Duty. The Adviser acknowledges that you are
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 you, and you are
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. Neither this Agreement nor the performance of the
services contemplated hereunder shall be considered to
constitute a partnership, association or joint venture between
you and the Adviser. In addition, nothing in this Agreement
shall be construed to constitute you as the agent or employee of
the Adviser or the Adviser as your agent or employee, and
neither party shall make any representation to the contrary. It
is understood that you are engaged hereunder as an independent
contractor solely to provide the services described above to the
Adviser and that you are not acting as an agent or fiduciary of,
and you shall not have any duties or liability to, the current
or future partners, members or equity owners of the Adviser or
any other third party in connection with its engagement
hereunder, all of which are hereby expressly waived to the
extent the Adviser has the
authority to waive such duties and liabilities. Furthermore, the
Adviser agrees that it is solely responsible for making its own
judgments in connection with the matters covered by this
Agreement (irrespective of whether you have advised or are
currently advising the Adviser on related or other matters).
5. Not Exclusive. Nothing herein
shall be construed as prohibiting you or your affiliates from
acting as an underwriter or financial adviser or in any other
capacity for any other persons (including other registered
investment companies or other investment managers).
6. Assignment. This Agreement may
not be assigned by either party without prior written consent of
the other party.
7. Amendment; Waiver. No provision
of this Agreement may be amended or waived except by an
instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement
shall be governed by, and construed in accordance with, the laws
of the State of New York.
9. 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]
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This Agreement shall be effective as of the date first written
above.
GABELLI FUNDS, LLC
| By: |
Name:
Title:
Agreed and Accepted:
CITIGROUP GLOBAL MARKETS INC.
By:
Name:
Title:
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Indemnification
Agreement
January
[ • ], 2011
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 100
Ladies and Gentlemen:
In connection with the engagement of Citigroup Global Markets
Inc. (the “Bank”) to advise and assist the
undersigned, Gabelli Funds, LLC (together with its affiliates
and subsidiaries, referred to as the “Company”) with
respect to the matters set forth in the Structuring Fee
Agreement dated January [ • ], 2011 between the
Company and the Bank (the “Agreement”), in the event
that the Bank, any of its affiliates, each other person, if any,
controlling the Bank or any of its affiliates, their respective
officers, current and former directors, employees and agents or
the successors or assigns of any of the foregoing persons (the
Bank and each such other person or entity being referred to as
an “Indemnified Party”) 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 the Agreement, the Company
agrees to indemnify, defend and hold each Indemnified Party
harmless to the fullest extent permitted by law, from and
against any losses, claims, damages, liabilities and expenses,
including fees and expenses of counsel to the Indemnified
Parties, with respect to the services performed pursuant to and
in accordance with 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 primarily from the gross
negligence or willful misconduct of such Indemnified Party. In
addition, in the event that an Indemnified Party becomes
involved in any capacity in any Proceeding with respect to the
services performed pursuant to and in accordance with the
Agreement, the Company will reimburse such Indemnified Party for
legal and other expenses (including the cost of any
investigation and preparation) as such expenses are incurred by
such Indemnified Party in connection therewith. Promptly as
reasonably practicable after receipt by an Indemnified Party of
notice of the commencement of any Proceeding, such Indemnified
Party will, if a claim in respect thereof is to be made under
this paragraph, notify the Company in writing of the
commencement thereof; but the failure so to notify the Company
(i) will not relieve the Company from liability under this
paragraph to the extent it is not materially prejudiced as a
result thereof and (ii) in any event shall not relieve the
Company from any liability which it may have otherwise than on
account of this Indemnification Agreement. Counsel to the
Indemnified Parties shall be selected by the Bank. The Company
may participate at its own expense in the defense of any such
action; provided, however, that counsel to the Company shall not
(except with the consent of the Indemnified Parties) also be
counsel to the Indemnified Parties. The Company shall not,
without the prior written consent of the Indemnified Parties,
settle or compromise or consent to the entry of any judgment
with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought hereunder
(whether or not the Indemnified Parties are actual or potential
parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each Indemnified
Party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any Indemnified Party.
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, on the one hand, and the Indemnified Parties, 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, on the one hand, and the Indemnified Parties, on
the
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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 Indemnified Parties, 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
stockholders or affiliates, as the case may be, as a result of
or in connection with the transaction (whether or not
consummated) for which the Bank has been retained to perform
services bears to the fees paid to the Bank under the Agreement;
provided, that in no event shall the Company contribute less
than the amount necessary to assure that the Indemnified Parties
are not liable for losses, claims, damages, liabilities and
expenses in excess of the amount of fees actually received by
the Bank 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 Bank, on the other hand. Notwithstanding
the provisions of this paragraph, an Indemnified Party shall not
be entitled to contribution from the Company if it is determined
that such Indemnified Party was guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act of 1933, as amended) and the Company was not
guilty of such fraudulent misrepresentation. The Company will
not settle any Proceeding in respect of which indemnity may be
sought hereunder, whether or not an Indemnified Party is an
actual or potential party to such Proceeding, without the
Bank’s prior written consent (which consent shall not be
unreasonably withheld). 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 no Indemnified Party shall have any
liability to the Company or any person asserting claims on
behalf of or in right of the Company with respect to the
services performed pursuant to and in accordance with 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 Bank 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 INDEMNIFIED PARTIES 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 THE BANK OR ANY INDEMNIFIED
PARTY. EACH INDEMNIFIED PARTY 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.
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The foregoing Indemnification Agreement shall remain in full
force and effect notwithstanding any termination of the
Bank’s engagement under the Agreement. 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,
GABELLI FUNDS, LLC
| By: |
Name:
Title:
Agreed and Accepted:
CITIGROUP GLOBAL MARKETS INC.
| By: |
Name:
Title:
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