EXHIBIT (k)(6)
FORM OF ADDITIONAL COMPENSATION AGREEMENT
ADDITIONAL COMPENSATION AGREEMENT (the "Agreement"), dated as of June 30,
2005, between [_______________] ("[_________]") and Xxxxx Xxxxx Management
("Xxxxx Xxxxx").
WHEREAS, the Xxxxx Xxxxx Tax-Managed Buy-Write Opportunities Fund
(including any successor by merger or otherwise) (the "Fund") is a 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, Xxxxx Xxxxx is the investment adviser of the Fund;
WHEREAS, [_____________] is acting as an underwriter in an offering of the
Fund's common shares;
WHEREAS, Xxxxx Xxxxx desires to provide additional compensation to
[__________] for acting as an underwriter in an offering of the Fund's common
shares; and
WHEREAS, Xxxxx Xxxxx desires to retain [_______] to provide after-market
support services designed to maintain the visibility of the Fund on an ongoing
basis, and [________] 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) Xxxxx Xxxxx hereby employs [________], for the period and on the
terms and conditions set forth herein, to provide the following services
at the reasonable request of Xxxxx Xxxxx:
(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 Xxxxx Xxxxx in connection therewith;
and
(3) information to and consult with Xxxxx Xxxxx with respect to
applicable strategies designed to address market value
discounts, if any.
(b) At the request of Xxxxx Xxxxx, [__________] shall limit or cease any
action or service provided hereunder to the extent and for the time
period requested by Xxxxx Xxxxx; provided, however, that pending
termination of this Agreement as provided for in Section 6 hereof,
any such limitation or cessation shall not relieve Xxxxx Xxxxx of
its payment obligations pursuant to Section 2 hereof.
(c) [__________] will promptly notify Xxxxx Xxxxx, as the case may be,
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 [__________] to Xxxxx Xxxxx
in connection with the performance of services by [__________] under
this Agreement.
2. Xxxxx Xxxxx shall pay [__________] a fee computed weekly and payable
quarterly in arrears commencing June 30, 2005 at an annualized rate of
[__]% of the average daily Gross Assets (as defined below) of the Fund
attributable to the common shares of the Fund sold by [__________]
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 June 27, 2005 (the "Prospectus") (including all Initial
Securities and Option Securities as such terms are described in the
Purchase Agreement, dated June 27, 2005, by and among the Fund, Xxxxx
Xxxxx and each of the Underwriters named therein (the "Purchase
Agreement")). The sum total of this fee, the additional compensation fees
payable to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, the
structuring fee paid to UBS Securities LLC, plus the amount of the expense
reimbursement of $.00667 per common share payable by the Fund to the
underwriters pursuant to the Purchase Agreement shall not exceed 4.5% of
the total price of the Fund's common shares offered by the Prospectus. The
sum total of all compensation to the Underwriters in connection with the
public offering of the common shares of the Fund, including sales load and
all forms of additional compensation to the Underwriters, shall not exceed
9.0% of the total price of the Fund's common shares offered by the
Prospectus. "Gross Assets" is defined as total assets of the Fund,
including any form of investment leverage that the Fund may in the future
determine to utilize, minus all accrued expenses incurred in the normal
course of operations, but not excluding any liabilities or obligations
attributable to any future investment leverage obtained through (i)
indebtedness of any type (including, without limitation, borrowing through
a credit facility/commercial paper program or the issuance debt
securities), (ii) the issuance of preferred shares or other similar
preference securities, (iii) the reinvestment of collateral received for
securities loaned in accordance with the Fund's investment objectives and
policies, and/or (iv) any other means. All quarterly fees payable
hereunder shall be paid to [__________] within 15 days following the end
of each calendar quarter.
3. Xxxxx Xxxxx 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. Xxxxx Xxxxx acknowledges that the services of [__________]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
[__________], and [__________] 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 [__________] 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 [__________]'s services to Xxxxx Xxxxx 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 Xxxxx Xxxxx 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. Xxxxx Xxxxx will furnish [__________]with such information as [__________]
believes appropriate to its assignment hereunder (all such information so
furnished being the "Information"). Xxxxx Xxxxx recognizes and confirms
that [__________] (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
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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 Xxxxx Xxxxx'x knowledge, the Information to be furnished by Xxxxx Xxxxx
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. Xxxxx Xxxxx will promptly notify [__________] if it learns of
any material inaccuracy or misstatement in, or material omission from, any
Information delivered to [__________].
8. Xxxxx Xxxxx agrees that [__________] shall have no liability to Xxxxx
Xxxxx or the Fund for any act or omission to act by [__________] in the
course of its performance under this Agreement, in the absence of gross
negligence or willful misconduct on the part of [__________]. Xxxxx Xxxxx
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.
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 Xxxxx Xxxxx and [__________] consent to
the jurisdiction of such courts and personal service with respect thereto.
Each of [__________] and Xxxxx Xxxxx 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. Xxxxx Xxxxx agrees that a
final judgment in any proceeding or counterclaim brought in any such court
shall be conclusive and binding upon Xxxxx Xxxxx and may be enforced in
any other courts to the jurisdiction of which Xxxxx Xxxxx 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 [__________] and Xxxxx Xxxxx.
13. All notices required or permitted to be sent under this Agreement shall be
sent, if to Xxxxx Xxxxx:
c/o Xxxxx Xxxxx Management
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Fund Administration
or if to [__________]:
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[___________]
[Address]
Attention: [__________]
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 U.S. mail with certified postage prepaid or when
actually received, whether by hand, express delivery service or facsimile
transmission, whichever is earlier.
14. A copy of the Agreement and Declaration of Trust of each of the Fund and
Xxxxx Xxxxx is on file with the Secretary of State of The Commonwealth of
Massachusetts, and notice hereby is given that this Additional
Compensation Agreement is executed on behalf of Xxxxx Xxxxx by an officer
or trustee of Xxxxx Xxxxx in his or her capacity as an officer or trustee
of Xxxxx Xxxxx and not individually and that the obligations under or
arising out of this Additional Compensation Agreement are not binding upon
any of the trustees, officers or shareholders individually but are binding
only upon the assets and properties of Xxxxx Xxxxx.
15. 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Additional
Compensation Agreement as of the date first above written.
XXXXX XXXXX MANAGEMENT [_________________________]
By: _______________________ By: _______________________
Name: Name:
Title: Title:
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INDEMNIFICATION AGREEMENT
June [__], 2005
[__________]
[Address]
Ladies and Gentlemen:
In connection with the engagement of [__________] ("[__________]") 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 June 30, 2005 between the Company and [__________] (the
"Agreement"), in the event that [__________] 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
[__________] 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 [__________]. In addition, in the event that
[__________] 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 [__________] for its legal and other expenses (including the cost of
any investigation and preparation) as such expenses are incurred by [__________]
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
[__________], 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 [__________] has been retained to perform financial
services bears to the fees paid to [__________] under the Agreement; provided,
that in no event shall the Company contribute less than the amount necessary to
assure that [__________] is not liable for losses, claims, damages, liabilities
and expenses in excess of the amount of fees actually received by [__________]
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 [__________], on the other hand. The Company will not settle any Proceeding
in respect of which indemnity may be sought hereunder, whether or not
[__________] is an
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actual or potential party to such Proceeding, without [__________]'s prior
written consent. For purposes of this Indemnification Agreement, [__________]
shall include [__________], any of its affiliates, each other person, if any,
controlling [__________] 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 [__________] 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 [__________]'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 [__________] 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 [__________] 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
[__________] OR ANY INDEMNIFIED PARTY. EACH OF [__________] 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 [__________]'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,
XXXXX XXXXX MANAGEMENT
By: ___________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
[__________________________]
By ______________________
Name:
Title:
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