STRUCTURING FEE AGREEMENT
[May 28], 2021
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement (the “Agreement”) is between Xxxxxxxxx Xxxxxx Investment Advisers LLC (the “Company”) and UBS Securities LLC (“UBS”) with respect to the Xxxxxxxxx Xxxxxx Next
Generation Connectivity Fund Inc. (the “Fund”). Capitalized terms used herein and not otherwise defined shall have the meanings given to them in the
Underwriting Agreement (as defined below).
1. Fee.
In consideration of certain financial advisory services that UBS has provided to the Company in assisting the Company in structuring, designing and organizing the Fund as well as services related to the sale and distribution of the shares of common
stock of the Fund, par value $0.0001 per share (the “Common Stock”), it being understood that the ultimate decision with respect to the structure, design and organization of the Fund shall rest with the Company, the Company shall pay a fee to UBS
in the aggregate amount of $[ ] (the “Fee”). The Fee shall be paid to UBS at or before the Closing Time by wire transfer to the order of UBS using the following wire instructions:
ABA #:
Account:
Account #:
Ref:
2. Term. This Agreement
shall terminate upon the payment of the entire amount of the Fee, as specified in Section 1 hereof or upon the termination of the Underwriting Agreement dated [May 25], 2021, by and among the Fund, the Company and each of the Underwriters named
therein (the “Underwriting Agreement”) without the Common Stock having been delivered and paid for. Notwithstanding the foregoing, Sections 4, 5, 8, 9 and 10 of this Agreement and the Indemnification Agreement attached hereto shall survive the
termination of this Agreement. UBS confirms that should the offering be terminated, UBS will only be reimbursed for reasonable and actual out-of-pocket expenses in accordance with FINRA Rule 5110(g)(5).
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.
No advice rendered by UBS to the Company 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 reproduced or disseminated,
by the Company or any of its affiliates or any of their agents, without UBS’ prior written consent, except (i) the Company may promptly
disclose the foregoing to any regulatory authority in response to a regulatory proceeding, process, inquiry or request provided the Company shall give UBS prompt notice thereafter of such request and disclosure if, in the view of Company counsel
and regulatory authority, it is 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 UBS
and its counsel, unless such consultation is prohibited by law, order or regulation) and (iii) on a confidential need-to-know basis, to the Fund and its officers and directors and their legal counsel, auditors and other advisers. This
confidentiality provision will terminate thirty-six (36) months from the date first written above.
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. The information provided by the Company, when delivered, was true and correct in all material respects and did not contain any material misstatement of fact or omit to state any material fact necessary to make
the statements contained therein not misleading. The Company will promptly notify UBS if it learns of any material inaccuracy or misstatement in, or material omission from, any information provided by the Company to UBS pursuant to this Section 5.
6. Not an Investment Adviser.
The Company acknowledges that UBS has 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 adviser 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, stockholders, 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 adviser 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. Successors and Assigns.
This Agreement shall be binding upon the Company and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Company’s or UBS’ respective businesses and/or assets.
11. 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 signature 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.
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This Agreement shall be effective as of the date first written above.
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Indemnification Agreement
[May 28], 2021
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of UBS Securities LLC (“UBS”) to advise and assist the undersigned, Xxxxxxxxx Xxxxxx Investment Advisers LLC (together
with its successors and assigns, the “Company”), with the matters set forth in the Structuring Fee Agreement, dated [May 28], 2021 between the Company and UBS (the “Agreement”), in the event that 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 any way relating to or referred to in
the Agreement or arising out of the matters contemplated by the Agreement, including, without limitation, related services and activities provided prior to the date of the Agreement, the Company agrees to indemnify, defend and hold UBS 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, including, without limitation, related services and activities provided 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 such losses, claims, damages, liabilities and expenses resulted primarily from the bad faith, gross negligence or willful misconduct of UBS. In addition, in the event that UBS 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 UBS for its legal and other expenses
(including fees and expenses of counsel and the cost of any investigation and preparation) as such expenses are incurred by UBS in connection therewith.
Promptly as reasonably practicable after receipt by UBS of notice of the commencement of any Proceeding with respect to which
indemnity is sought hereunder, UBS will notify the Company in writing of the commencement thereof; provided that the failure to so 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. The Company may assume the defense of any such Proceeding,
including the employment of counsel reasonably satisfactory to UBS. UBS shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the
expense of UBS, unless (i) the Company shall have failed promptly to assume the defense thereof and employ counsel as provided above or (ii) the named parties to any such Proceeding (including impleaded parties) include UBS and the Company, and UBS
shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the Company, provided that the Company shall not in any event be responsible hereunder for
the fees and expenses of more than one firm of separate counsel in connection with any Proceeding in the same jurisdiction, in addition to any local counsel.
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 members and affiliates and other constituencies, on the one hand, and 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 members 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 members 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 members 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 UBS has been retained to perform services bears to the fees paid to UBS under the Agreement; provided, that in no event shall the Company
contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses in excess of the amount of fees actually received by 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
UBS, on the other hand. The Company will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS’ prior written consent, unless such
settlement, compromise or consent (i) includes an unconditional release of UBS from all liability related to or arising out of such Proceeding and (ii) does not impose any actual or potential liability upon UBS and does not contain any factual or
legal admission by or with respect to UBS or any adverse statement with respect to the character, professionalism, due care, loyalty, expertise or reputation of UBS or any action or inaction by UBS. For purposes of this Indemnification Agreement, UBS
shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling 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 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 bad faith, gross negligence or willful misconduct of 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 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 UBS OR ANY INDEMNIFIED PARTY. 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. EACH OF UBS 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 THEREON AND MAY BE ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH SUCH PARTY IS OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT.
The foregoing Indemnification Agreement shall remain in full force and effect in connection with the services provided under the Agreement notwithstanding any termination of
UBS’ engagement. This Indemnification Agreement shall be binding upon the Company and UBS and their respective successors and assigns and any successor or assign of any substantial portion of the Company’s or UBS’ respective businesses and/or assets.
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. 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.
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