MARKETING AND STRUCTURING FEE AGREEMENT
Exhibit 99(h)(iv)(i)
MARKETING
AND STRUCTURING
FEE AGREEMENT
FEE AGREEMENT
January
[ • ], 2011
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This agreement is between Gabelli Funds, LLC (the
“Company”) and Xxxxxx Xxxxxxx & Co.
Incorporated (“Xxxxxx Xxxxxxx”) with respect to
The Gabelli Natural Resources, Gold & Income Trust
(the “Fund”).
1. Fee. (a) In consideration
of advice to the Company relating to, but not limited to, the
design and structuring of, and marketing assistance with respect
to, the Fund and the distribution of its common shares of
beneficial interest (the “Shares”), including
without limitation, 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, (iii) the proportion of the Fund’s assets
to invest in the Fund’s strategies, and (iv) the
overall marketing and positioning thesis for the Fund’s
initial public offering, the Company shall pay a fee to
Xxxxxx Xxxxxxx calculated at %
of the aggregate price to the public of the Shares sold by
Xxxxxx Xxxxxxx in the Fund’s initial public offering (the
“Offering”) (including any Shares over-allotted
by Xxxxxx Xxxxxxx in the Offering regardless of whether the
over-allotment option in the Offering is exercised), equal to
$ (the “Fee”).
Subject to paragraph (b), the Fee paid to Xxxxxx Xxxxxxx shall
not exceed % of the total price to
the public of the Shares sold by the Fund in the Offering.
(b) Notwithstanding paragraph (a), in the event that the
Company (or the Fund or any person or entity affiliated with the
Company, the Fund or any subadviser to the Fund or acting on
behalf of or at the direction of any of the foregoing)
compensates or agrees to compensate any other broker or dealer
participating in the Offering (each, an “Other
Broker”) for any services or otherwise in connection
with the Offering or with respect to the Fund or its Shares
(excluding for this purpose any compensation paid directly to
the entire underwriting syndicate, as a group, pursuant to the
principal underwriting agreement (the “Underwriting
Agreement”) relating to the Offering), whether such
compensation be denominated a fee, an expense reimbursement, a
set-off, a credit or otherwise (such compensation with respect
to any Other Broker, such Other Broker’s “Other
Compensation”), then the amount of the Fee shall be
increased as and to the extent necessary so that the Fee payable
to Xxxxxx Xxxxxxx hereunder, expressed as a percentage of the
aggregate price to the public of the Shares sold by Xxxxxx
Xxxxxxx in the Offering (including any Shares over-allotted by
Xxxxxx Xxxxxxx in the Offering regardless of whether the
over-allotment option in the Offering is exercised), is no less
than the Other Compensation, expressed as a percentage of the
aggregate price to the public of the Shares sold by such Other
Broker in the Offering. For purposes of this paragraph (b), the
number of Shares sold by Xxxxxx Xxxxxxx shall be deemed to
include one half of the number of Shares sold by Xxxxxx Xxxxxxx
Xxxxx Xxxxxx LLC, and Citigroup Global Markets Inc. shall be
deemed to have sold the other half.
(c) The Company shall pay the Fee to Xxxxxx Xxxxxxx before
the closing of the purchase and sale of the Shares pursuant to
the Underwriting Agreement on January [ • ], 2011
by wire transfer to the order of Xxxxxx Xxxxxxx. The Company
acknowledges that the Fee is in addition to any compensation
Xxxxxx Xxxxxxx earns in connection with its role as an
underwriter to the Fund in its initial public offering, which
services are distinct from and in addition to the marketing and
structuring services described above.
2. Term. This Agreement shall
terminate upon payment of the entire amount of the Fee, as
specified in Section 1 hereof, except as provided in
Section 4.
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. None of
any advice rendered by Xxxxxx Xxxxxxx to the Company or any
communication from Xxxxxx Xxxxxxx in connection with the
services performed by Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx’x
prior written consent, except (i) the Company may disclose
the foregoing to any regulatory authority in response to a
regulatory proceeding, process, inquiry or request, so long as
the Company gives Xxxxxx Xxxxxxx prompt notice thereof unless in
the opinion of the Company’s counsel it is not 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, Xxxxxx Xxxxxxx and its counsel, unless in the
opinion of the Company’s counsel it is not legally able so
to consult) and (iii) on a confidential
need-to-know
basis, to the Fund and its officers and directors and their
legal counsel, auditors and other advisors. This confidentiality
provision will terminate eighteen months from the date first
written above.
5. Not an Investment Advisor. The
Company acknowledges that Xxxxxx Xxxxxxx is 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 Xxxxxx Xxxxxxx, and Xxxxxx Xxxxxxx is
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. The Company’s engagement of Xxxxxx Xxxxxxx is not
intended to confer rights upon any person (including the Fund or
any shareholders, employees or creditors of the Company or the
Fund) not a party hereto as against Xxxxxx Xxxxxxx or its
affiliates, or their respective directors, officers, employees
or agents, successors, or assigns.
6. Not Exclusive. Nothing herein
shall be construed as prohibiting Xxxxxx Xxxxxxx or its
affiliates from acting as an underwriter or financial advisor or
in any other capacity for any other persons (including other
registered investment companies or other investment managers).
Neither this Agreement nor the performance of the services
contemplated hereunder shall be considered to constitute a
partnership, association or joint venture between Xxxxxx Xxxxxxx
and the Company. In addition, nothing in this Agreement shall be
construed to constitute Xxxxxx Xxxxxxx as the agent or employee
of the Company or the Company as the agent or employee of Xxxxxx
Xxxxxxx, and neither party shall make any representation to the
contrary. It is understood that Xxxxxx Xxxxxxx is engaged
hereunder solely to provide the services described above to the
Company and that Xxxxxx Xxxxxxx is not acting as an agent or
fiduciary of, and Xxxxxx Xxxxxxx shall not have any duties or
liability to, the current or future partners, members or equity
owners of the Company or any other third party in connection
with its engagement hereunder, all of which are hereby expressly
waived to the extent the Company has the authority to waive such
duties and liabilities.
7. Assignment. This Agreement may
not be assigned by either party without prior written consent of
the other party.
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; Consent to Jurisdiction; WAIVER OF
JURY TRIAL. This Agreement and any claim,
counterclaim, dispute or proceeding 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
internal 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 (and of the appropriate appellate
courts therefrom), which courts shall have exclusive
jurisdiction over the adjudication of such matters except as
provided below. Each of the parties hereby irrevocably consents
to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such Claim and irrevocably
waives, to the fullest extent permitted by law,
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any objection that it may now or hereafter have to the laying of
the venue of any such Claim in any such court or that any such
Claim brought in any such court has been brought in an
inconvenient forum. Process in any such Claim may be served on
any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party as
provided in Section 11 shall be deemed effective service of
process on such party. EACH OF XXXXXX XXXXXXX 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 XXXXXX XXXXXXX
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 UPON
XXXXXX XXXXXXX AND THE COMPANY, AS THE CASE MAY BE, AND MAY BE
ENFORCED IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH XXXXXX
XXXXXXX OR THE COMPANY ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH
JUDGMENT.
10. Entire Agreement. 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.
11. Notices. All notices required
or permitted to be sent under this Agreement shall be sent, if
to the Company:
Gabelli Funds, LLC
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx
00000-0000
Attention:
or if to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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 by certified
U.S. mail, postage prepaid, or when actually received,
whether by hand, express delivery service or facsimile
transmission, whichever is earlier.
12. 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 email or facsimile
transmission shall be effective as delivery of a manually
executed counterpart hereof.
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This Agreement shall be effective as of the date first written
above.
Very truly yours,
GABELLI FUNDS, LLC
By: |
Name: |
Title: |
Accepted and agreed to as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: |
Name: |
Title: |
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INDEMNIFICATION
AGREEMENT
January
[ • ], 2011
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxx Xxxxxxx &
Co. Incorporated (“Xxxxxx Xxxxxxx”) to advise
and assist the undersigned (together with its affiliates and
subsidiaries, referred to as the “Company”)
with the matters set forth in the Marketing and Structuring Fee
Agreement dated January [ • ], 2011 between the
Company and Xxxxxx Xxxxxxx (the “Marketing and
Structuring Fee Agreement”), in the event that
Xxxxxx Xxxxxxx 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) with respect to the services
performed pursuant to and in accordance with the Marketing and
Structuring Fee Agreement, including, without limitation,
related services and activities prior to the date of the
Marketing and Structuring Fee Agreement, the Company has agreed
to indemnify and hold harmless Xxxxxx Xxxxxxx and Xxxxxx
Xxxxxxx’x affiliates and their respective officers,
directors, employees and agents and each other person, if any,
controlling Xxxxxx Xxxxxxx or any of Xxxxxx Xxxxxxx’x
affiliates (Xxxxxx Xxxxxxx and each such other person being an
“Indemnified Person”) from and against any
losses, claims, damages or liabilities related to, arising out
of or in connection with the activities (the
“Activities”) performed by any Indemnified
Person in connection with, or arising out of, or based upon, the
Marketing and Structuring Fee Agreement
and/or any
action taken by any Indemnified Person in connection therewith
(including, without limitation, any presentation given by the
Company and an Indemnified Person relating to the common shares
of beneficial interest (the “Shares”) of The
Gabelli Natural Resources, Gold & Income Trust (the
“Fund”)), and will reimburse each Indemnified
Person for all expenses (including fees and expenses of counsel)
as they are incurred in connection with investigating,
preparing, pursuing or defending any claim, suit, action,
proceeding, investigation or inquiry related to, arising out of
or in connection with the Activities, whether or not pending or
threatened and whether or not any Indemnified Person is a party.
The Company will not, however, be responsible for any losses,
claims, damages, liabilities (or expenses relating thereto) that
are finally judicially determined to have resulted from the bad
faith or gross negligence of any Indemnified Person. The Company
also agrees that no Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with the Activities, except
for any such liability for losses, claims, damages or
liabilities incurred by the Company that are finally judicially
determined to have resulted from the bad faith or gross
negligence of such Indemnified Person.
Notwithstanding the foregoing, in no event shall the Company be
responsible for any losses, claims, damages or liabilities to
any Indemnified Person arising from any such claim, suit,
action, proceeding, investigation or inquiry in excess of the
gross proceeds received by the Fund from the initial public
offering of the Shares of the Fund (the
“Offering”); provided, however, that the
Company shall, as set forth above, indemnify and be responsible
for, regardless of the gross proceeds received by the Fund from
the Offering, all expenses (including fees and expenses of
counsel) incurred in connection with investigating, preparing,
pursuing or defending any claim, suit, action, proceeding,
investigation or inquiry related to, arising out of or in
connection with the Activities, whether or not pending or
threatened and whether or not any Indemnified Person is a party,
as set forth above.
The Company will not, without Xxxxxx Xxxxxxx’x prior
written consent, settle, compromise, consent to the entry of any
judgment in or otherwise seek to terminate any claim, suit,
action, proceeding, investigation or inquiry in respect of which
indemnification may be sought hereunder (whether or not any
Indemnified Person is a party thereto) unless such settlement,
compromise, consent or termination includes a release of each
Indemnified Person from any liabilities arising out of such
claim, suit, action, proceeding, investigation or inquiry. No
Indemnified Person seeking indemnification, reimbursement or
contribution under this agreement (the “Indemnification
Agreement”) will, without our prior written consent,
settle, compromise, consent to the
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entry of any judgment in or otherwise seek to terminate any
claim, suit, action, proceeding, investigation or inquiry
referred to in the preceding paragraph.
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 (including the net proceeds from
the Shares sold by Xxxxxx Xxxxxxx in the Offering before
deducting expenses) and its partners and affiliates and other
constituencies, on the one hand, and Xxxxxx Xxxxxxx, on the
other hand, in the matters contemplated by the Marketing and
Structuring Fee 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 partners 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 partners 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 partners 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 Xxxxxx Xxxxxxx has been retained to
perform financial services bears to the fees paid to Xxxxxx
Xxxxxxx under the Marketing and Structuring Fee Agreement;
provided that in no event shall the Company contribute less than
the amount necessary to assure that Xxxxxx Xxxxxxx is not liable
for losses, claims, damages, liabilities and expenses in excess
of the amount of fees actually received by Xxxxxx Xxxxxxx
pursuant to the Marketing and Structuring Fee 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 Xxxxxx Xxxxxxx, on the
other hand.
This Indemnification Agreement, together with the Marketing and
Structuring Fee Agreement, any contemporaneous written
agreements and any prior written agreements (to the extent not
superseded by this agreement) that relate to the Offering of the
Shares, represents the entire agreement between the Company and
the Indemnified Parties with respect to the marketing and
structuring fee paid to Xxxxxx Xxxxxxx under the Marketing and
Structuring Fee Agreement.
The Company acknowledges that in connection with the Offering of
the Shares: (i) Xxxxxx Xxxxxxx has acted at arms length, is
not an agent of, and owes no fiduciary duties to, the Company,
the Fund or any person affiliated with the Fund or the Company,
(ii) Xxxxxx Xxxxxxx owes the Company only those duties and
obligations set forth in this Indemnification Agreement and
(iii) Xxxxxx Xxxxxxx may have interests that differ from
those of the Company. The Company waives to the full extent
permitted by applicable law any claims any of the Company, the
Fund or any person affiliated with the Fund or the Company may
have against Xxxxxx Xxxxxxx arising from an alleged breach of
fiduciary duty in connection with the offering of the Shares.
The provisions of this Indemnification Agreement shall apply to
the Activities and any modification thereof and shall remain in
full force and effect regardless of any termination or the
completion of Xxxxxx Xxxxxxx’x services under the Marketing
and Structuring Fee Agreement.
This Indemnification Agreement may not be assigned by either
party without prior written consent of the other party. No
provision of this Indemnification Agreement may be amended or
waived except by an instrument in writing signed by the parties
hereto. This Indemnification Agreement and any claim,
counterclaim, dispute or proceeding of any kind or nature
whatsoever arising out of or in any way relating to this
Indemnification Agreement (“Claim”), directly
or indirectly, shall be governed by and construed in accordance
with the internal 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 (and of the appropriate appellate
courts therefrom), which courts shall have exclusive
jurisdiction over the adjudication of such matters except as
provided below. Each of the parties hereby irrevocably consents
to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such Claim and irrevocably
waives, to the fullest extent
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permitted by law, any objection that it may now or hereafter
have to the laying of the venue of any such Claim in any such
court or that any such Claim brought in any such court has been
brought in an inconvenient forum. Process in any such Claim may
be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such
party as provided in Section 11 of the Marketing and
Structuring Fee Agreement shall be deemed effective service of
process on such party. EACH OF XXXXXX XXXXXXX 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. EACH
OF XXXXXX XXXXXXX AND 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 XXXXXX XXXXXXX AND THE
COMPANY, AS THE CASE MAY BE, AND MAY BE ENFORCED IN ANY OTHER
COURTS TO THE JURISDICTION OF WHICH XXXXXX XXXXXXX OR THE
COMPANY ARE OR MAY BE SUBJECT, BY SUIT UPON SUCH JUDGMENT. This
Indemnification 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 Indemnification
Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
Very truly yours,
GABELLI FUNDS, LLC
By: |
Name: |
Title:
Accepted and agreed to as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: |
Name: |
Title: |
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