EXHIBIT 99.2(h)(ii)
STRUCTURING FEE AGREEMENT
This STRUCTURING FEE AGREEMENT (the "Agreement"), dated as of December [ ],
2004, between X.X. Xxxxxxx & Sons, Inc. ("X.X. Xxxxxxx") and Claymore Advisors,
LLC ("Claymore").
WHEREAS, Fiduciary/Claymore MLP Opportunity Fund (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 of beneficial interest, par value $.01 per share (the "Common Shares"),
are registered under the Securities Act of 1933, as amended;
WHEREAS, X.X. Xxxxxxx has acted as lead managing underwriter in the public
offering of the Fund's Common Shares (the "Offering");
WHEREAS, Claymore is the investment adviser of the Fund;
WHEREAS, Claymore desires to retain X.X. Xxxxxxx to provide certain
services relating to the structure and design of the Fund, and X.X. Xxxxxxx is
willing to render such services; and
WHEREAS, Claymore desires to provide compensation to X.X. Xxxxxxx for
providing such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. Claymore hereby employs X.X. Xxxxxxx, for the period and on the terms and
conditions set forth herein, to provide the following services: (i) provide
advice relating to the structure and design of the Fund and their impact on
various accounting, tax and trading aspects of the Fund; and (ii) provide
advisory services with respect to the organization of the Fund and the
suitability and marketability of its securities.
2. Claymore shall pay a structuring fee to X.X. Xxxxxxx in the aggregate
amount of $[ ] (the "Structuring Fee"). The Structuring Fee shall be paid
at the same time as the delivery of the Common Shares to the underwriters
in the Offering and shall be made by wire transfer to the order of X.X.
Xxxxxxx & Sons, Inc. The total amount of the fee hereunder will not exceed
[0.50]% of the total price to the public of the common shares sold in the
Offering; and in no event shall the total amount of this fee to X.X.
Xxxxxxx [and additional payments to ___________ ] exceed 4.5% of the total
price to the public of the common shares sold in the Offering. The sum
total of all compensation to the underwriters in connection with the
Offering, including sales load and other underwriting compensation in
connection with the Offering, shall not exceed 9.0% of the total price to
the public of the Fund's common shares offered by the Prospectus.
3. Claymore acknowledges that the services of X.X. Xxxxxxx provided for
hereunder do not include any advice as to the value of securities or
regarding the advisability of purchasing or selling any securities, in each
case 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 X.X. Xxxxxxx, and X.X. Xxxxxxx is not agreeing, to: (i) furnish
any advice or make any recommendations regarding the purchase or sale of
portfolio securities or (ii) render any opinions, valuations of portfolio
securities or recommendations of any kind in connection with providing the
services described in Section 1 hereof, to the extent that any such
services would constitute investment advisory or investment banking
services, it being understood between the parties hereto that any
such investment advisory or investment banking services if, and to the
extent, agreed to be performed by X.X. Xxxxxxx, shall be the subject of a
separate agreement with Claymore.
4. Nothing herein shall be construed as prohibiting X.X. Xxxxxxx or any of its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or other investment
managers), so long as X.X. Xxxxxxx'x services to Claymore are not impaired
thereby. Neither this Agreement nor the performance of the services
contemplated hereunder shall be considered to constitute a partnership,
association or joint venture between X.X. Xxxxxxx and Claymore. In
addition, nothing in this Agreement shall be construed to constitute X.X.
Xxxxxxx as the agent or employee of Claymore or Claymore as the agent or
employee of X.X. Xxxxxxx, and neither party shall make any representation
to the contrary. It is understood that X.X. Xxxxxxx is being engaged
hereunder solely to provide the services described above to Claymore and
that X.X. Xxxxxxx is not acting as an agent or fiduciary of, and X.X.
Xxxxxxx shall not have any duties or liability to, the current or future
shareholders of the Fund or any other third party in connection with its
engagement hereunder, all of which are hereby expressly waived to the
extent Claymore has the authority to waive such duties and liabilities.
5. This Agreement shall terminate upon the payment of the entire amount of the
Structuring Fee, as specified in Section 2 hereof.
6. Claymore agrees that X.X. Xxxxxxx shall not have any liability to Claymore
or the Fund for any act or omission to act by X.X. Xxxxxxx in the course of
its performance under this Agreement, in the absence of gross negligence or
willful misconduct on the part of X.X. Xxxxxxx. Claymore agrees that it
shall provide indemnification to X.X. Xxxxxxx as set forth in the
Indemnification Agreement appended hereto.
7. 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.
8. 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 X.X. Xxxxxxx consent to the
jurisdiction of such courts and personal service with respect thereto. Each
of Claymore and X.X. Xxxxxxx 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. Each of Claymore and X.X.
Xxxxxxx agrees that a final judgment in any proceeding or counterclaim
brought in any such court shall be conclusive and binding upon such party
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.
9. This Agreement may not be assigned by either party without the prior
written consent of the other party.
10. This 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
Claymore and X.X. Xxxxxxx.
11. 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 X.X. Xxxxxxx:
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Attention: Investment Banking--Corporate Finance
Any notice shall be deemed to be given or received on the third day after
deposit in the U.S. mail with certified postage prepaid or when actually
received, whether by hand, express delivery service or facsimile
transmission, whichever is earlier.
12. 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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Structuring
Fee Agreement as of the date first above written.
CLAYMORE ADVISORS, LLC X.X. XXXXXXX & SONS, INC.
By: By:
--------------------------------- ---------------------------------
Name: Xxxxxxxx Xxxxxxx Name: Xxxxx Xxxxxx
Title: Senior Managing Director Title: Director -
and General Counsel Investment Banking
INDEMNIFICATION AGREEMENT
December [ ], 2004
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of X.X. Xxxxxxx & Sons, Inc. (the
"Service Provider") to provide services to the undersigned (together with its
affiliates under the control of Claymore Advisors, LLC and subsidiaries,
referred to as the "Company") in connection with the matters set forth in the
Structuring Fee Agreement dated December [ ], 2004 (the "Agreement"), between
the Company and the Service Provider, in the event that the Service Provider
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 prior to the date
of the Agreement (other than services and activities performed pursuant to the
underwriting agreement between the parties and dated even herewith), the Company
agrees to indemnify, defend and hold the Service Provider 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 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 from the gross negligence or willful
misconduct of the Service Provider. In addition, in the event that the Service
Provider 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, including, without limitation,
related services and activities prior to the date of the Agreement (other than
services and activities performed pursuant to the underwriting agreement between
the parties and dated even herewith), the Company will reimburse the Service
Provider for its legal and other expenses (including the cost of any
investigation and preparation) as such expenses are reasonably incurred by the
Service Provider 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 shareholders and other constituencies, on the one hand,
and the Service Provider, 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 shareholders 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
shareholders 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 shareholders 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
Service Provider has been retained to perform services bears to the fees paid to
the Service Provider under the Agreement; provided, that in no event shall the
Company contribute less than the amount necessary to assure that the Service
Provider is
not liable for losses, claims, damages, liabilities and expenses in excess of
the amount of fees actually received by the Service Provider 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 Service
Provider, on the other hand. The Company shall not be liable under this
Indemnification Agreement to the Service Provider regarding any settlement or
compromise or consent to the entry of any judgment with respect to any
Proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the Company is an actual or potential party to such
Proceeding) unless such settlement, compromise or judgment is consented to by
the Company. The Company shall not, without the prior written consent of the
Service Provider, settle or compromise or consent to the entry of any judgment
with respect to any Proceeding in respect of which indemnification or
contribution could be sought under this Indemnification Agreement (whether or
not the Service Provider is an actual or potential party thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of the
Service Provider from all liability arising out of such Proceeding 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 the Service Provider. For purposes of this
Indemnification Agreement, the Service Provider shall include any of its
affiliates, each other person, if any, controlling the Service Provider or any
of its affiliates, their respective officers, current and former directors,
employees and agents, and the successors and assignees 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 Service Provider 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 the Service
Provider'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 from the gross
negligence or willful misconduct of the Service Provider in performing the
services that are the subject of the Agreement.
Notwithstanding any provision contained herein, in no event shall the
Service Provider be entitled to indemnification by the Company hereunder from
and against any losses, claims, damages, liabilities or expenses in respect of
which indemnity may be sought under Section 9 of the Underwriting Agreement.
For clarification, the parties to this Indemnification Agreement agree that
the term "affiliate" as used in the definition of "Company" herein does not
include any registered investment company for which Claymore Advisors, LLC or
any of its affiliates serves as investment adviser.
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 THE SERVICE PROVIDER 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 SERVICE PROVIDER OR ANY INDEMNIFIED
PARTY. THE SERVICE PROVIDER 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 Service Provider'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: Xxxxxxxx Xxxxxxx
Title: Senior Managing Director
and General Counsel
Accepted and agreed to as of
the date first above written:
X.X. XXXXXXX & SONS, INC.
By:
-----------------------------
Name: Xxxxx Xxxxxx
Title: Director -
Investment Banking
