EXHIBIT (K)(6)
FORM OF SHAREHOLDER SERVICING AGREEMENT
SHAREHOLDER SERVICING AGREEMENT (the "Agreement"), dated as of May [ ],
2007, between Pioneer Investment Management, Inc. ("Pioneer Investment
Management") and UBS Securities LLC ("UBS Securities").
WHEREAS, Pioneer Diversified High Income Trust (the "Trust") is a
closed-end, diversified management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and its common
shares of beneficial interest are registered under the Securities Act of 1933,
as amended; and
WHEREAS, Pioneer Investment Management is the investment adviser of the
Trust; and
WHEREAS, Pioneer Investment Management desires to retain UBS Securities
to provide shareholder servicing and market information with respect to the
Trust, and UBS Securities 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. Pioneer Investment Management hereby employs UBS Securities, for the
period and on the terms and conditions set forth herein, to provide the
following services:
(a) At the request of and as specified by Pioneer Investment
Management, undertake to make available public information pertaining to the
Trust on an ongoing basis and to communicate to investors and prospective
investors the Trust's features and benefits (including arranging periodic
seminars or conference calls, responding to questions from current or
prospective shareholders and contacting specific shareholders, where
appropriate).
(b) At the request of and as specified by Pioneer Investment
Management, make available to investors and prospective investors market price,
net asset value, yield and other information regarding the Trust (provided that
services shall not include customary market research information provided by UBS
Securities or its registered broker-dealer affiliates in the ordinary course of
their business), if reasonably obtainable, for the purpose of maintaining the
visibility of the Trust in the investor community.
(c) At the request of Pioneer Investment Management, provide
certain economic research and statistical information and reports, if reasonably
obtainable to Pioneer Investment Management or the Trust and consult with
representatives of Pioneer Investment Management and/or Trustees of the Trust in
connection therewith, which information and reports shall include: (i)
statistical and financial market information with respect to the Trust's market
performance; and (ii) comparative information regarding the Trust and other
closed-end management investment companies with respect to (x) the net asset
value of their respective shares, (y) the respective market performance of the
Trust and such other companies and (z) other relevant performance indicators.
Except as legally required, such information and reports may not be quoted or
referred to, orally or in writing, reproduced or disseminated by Pioneer
Investment Management, Inc., the Trust or any of their affiliates or any of
their agents, without the prior written consent of UBS Securities, which consent
will not be unreasonably withheld.
(d) At the request of Pioneer Investment Management, provide
information to and consult with Pioneer Investment Management and/or the Board
of Trustees of the Trust with respect to applicable strategies designed to
address market value discounts, which may include share repurchases, tender
offers, modifications to dividend policies or capital structure, repositioning
or restructuring of the Trust,
conversion of the Trust to an open-end investment company, liquidation or
merger; including providing information concerning the use and impact of the
above strategic alternatives by other market participants.
(e) At the request of Pioneer Investment Management, UBS
Securities shall limit or cease any action or service provided hereunder to the
extent and for the time period requested by Pioneer Investment Management;
provided, however, that pending termination of this Agreement as provided for in
Section 5 hereof, any such limitation or cessation shall not relieve Pioneer
Investment Management of its payment obligations pursuant to Section 2 hereof.
2. Pioneer Investment Management will pay UBS Securities a fee computed
[daily] and payable quarterly at an annualized rate of 0.10% of the Trust's
managed assets (as defined in the Prospectus for the Trust, dated May [__],
2007). Fees payable hereunder shall be subject to the sales charge limits of the
NASD, Inc., and shall not exceed [___]% of the aggregate offering price in the
initial public offering of the common shares of the Trust (the "Offering") (the
"Maximum Fee Amount").
3. Pioneer Investment Management acknowledges that the services of UBS
Securities 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 Trust's portfolio. No provision of this Agreement shall be considered as
creating, nor shall any provision create, any obligation on the part of UBS
Securities, and UBS Securities 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.
Except to the extent legally required (after consultation with, and in
the case of UBS Securities' advice (other than as required by a court order)
with the approval as to form and substance by, UBS Securities and its counsel),
neither (i) the name of UBS Securities nor (ii) any advice rendered by UBS
Securities to Pioneer Investment Management or the Trust in connection with the
services performed by UBS Securities pursuant to this Agreement will be quoted
or referred to orally or in writing, or in the case of (ii), reproduced or
disseminated, by Pioneer Investment Management, the Trust or any of their
affiliates or any of their agents, without the prior written consent of UBS
Securities.
4. Nothing herein shall be construed as prohibiting UBS Securities or its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or other investment managers).
In addition, nothing herein shall be construed as prohibiting UBS Securities and
its affiliates, in the ordinary course of business, from trading the securities
of the Trust for its own account and for the accounts of customers or from
holding at any time a long or short position in such securities. Neither this
Agreement nor the performance of the services hereunder shall be considered to
constitute a partnership, association or joint venture between UBS Securities
and Pioneer Investment Management. In addition, nothing herein shall be
construed to constitute UBS Securities as the agent or employee of Pioneer
Investment Management or Pioneer Investment Management as the agent or employee
of UBS Securities, and neither party shall make any representation to the
contrary.
5. This Agreement shall continue coterminously with and so long as the
Investment Advisory Agreement, dated May [ ], 2007, remains in effect between
the Trust and Pioneer Investment Management, or any similar investment advisory
agreement with a successor in interest or affiliate of Pioneer Investment
Management remains in effect, as, and to the extent, that such investment
advisory agreement is renewed periodically in accordance with the 1940 Act;
provided, however, that this
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Agreement shall automatically terminate if further payments to UBS Securities
would cause the total amount of underwriting compensation in connection with the
Offering to exceed the Maximum Fee Amount. This Agreement may not be assigned,
except by operation of law or in connection with the sale of all or
substantially all of the assets, business or equity securities of one of the
parties hereto, without the other party's prior consent.
6. Pioneer Investment Management will furnish UBS Securities with such
information as UBS Securities believes appropriate to its assignment hereunder
(all such information so furnished being the "Information"). Pioneer Investment
Management recognizes and confirms that UBS Securities (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 verified the same and (b) does not assume
responsibility for the accuracy, completeness or reasonableness of the
Information and such other information. The Information to be furnished by
Pioneer Investment Management 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. Pioneer Investment Management will promptly notify UBS
Securities if it learns of any material inaccuracy or misstatement in, or
material omission from, any Information delivered to UBS Securities.
7. It is understood that UBS Securities is being engaged hereunder as an
independent contractor solely to provide the services described above to Pioneer
Investment Management and to the Trust and that UBS Securities is not acting as
an agent or fiduciary of, and shall have no duties or liability to the current
or future shareholders of, Pioneer Investment Management, the Trust, the current
or future shareholders of the Trust or any other third party in connection with
its engagement hereunder, all of which are hereby expressly waived.
8. Pioneer Investment Management agrees that UBS Securities shall have no
liability to Pioneer Investment Management or the Trust for any act or omission
to act by UBS Securities in the course of its performance under this Agreement,
in the absence of gross negligence or willful misconduct on the part of UBS
Securities. Pioneer Investment Management 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 SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY THEREIN AND WITHOUT
REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
10. EACH OF PIONEER INVESTMENT MANAGEMENT AND UBS SECURITIES AGREES THAT
ANY ACTION OR PROCEEDING BASED HEREON, OR ARISING OUT OF UBS SECURITIES'
ENGAGEMENT HEREUNDER, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN XXX XXXXXX
XX XXX XXXXX XX XXX XXXX LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. PIONEER
INVESTMENT MANAGEMENT AND UBS SECURITIES EACH HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND
COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF
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NEW YORK FOR THE PURPOSE OF ANY SUCH ACTION OR PROCEEDING AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH ACTION OR PROCEEDING. EACH OF PIONEER INVESTMENT MANAGEMENT AND UBS
SECURITIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND
ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
11. Pioneer Investment Management and UBS Securities each hereby
irrevocably waives any right it may have to a trial by jury in respect of any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby. This Agreement may not be assigned by either party without
the prior written consent of the other party.
12. Pioneer Investment Management hereby agrees that it will not provide
any of the information provided by UBS Securities hereunder to the Trust or the
Board of Trustees of the Trust without the Trust first executing and delivering
to UBS Securities an acknowledgment in the form attached hereto as Exhibit A.
13. 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 UBS
Securities and Pioneer Investment Management.
14. All notices required or permitted to be sent under this Agreement shall
be sent, if to Pioneer Investment Management:
Pioneer Investment Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Legal Officer
or if to UBS Securities:
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
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.
15. This Agreement may be exercised on separate counterparts, each of which
is deemed to be an original and all of which taken together constitute one and
the same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Shareholder Servicing Agreement as of the date first above written.
PIONEER INVESTMENT MANAGEMENT, INC.
By:
--------------------------------
Name:
Title:
UBS SECURITIES LLC
By:
--------------------------------
Name: Xxxx X. Reit
Title: Managing Director
By:
--------------------------------
Name: Xxxx Xxx
Title: Executive Director
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EXHIBIT A
FORM OF ACKNOWLEDGEMENT
Pioneer Diversified High Income Trust
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
[Date]
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [ ]
Re: Shareholder Servicing Agreement
Dear Sir or Madam:
Reference is made to the Shareholder Servicing Agreement (the
"Agreement"), dated as of May [ ], 2007, between Pioneer Investment Management,
Inc. ("Pioneer Investment Management") and UBS Securities LLC ("UBS
Securities"). We hereby acknowledge that, with respect to any services,
information or advice provided to us or to our Board of Trustees by UBS
Securities under the Agreement, we will be subject to the provisions of Sections
3, 4, 6, 7, 9, 10 and 11, the provisions in the last sentence of Section 1(c)
and first sentence of Section 8, and the limitation on liability in the second
paragraph of the Indemnification Agreement attached to the Agreement to the same
extent applicable to Pioneer Investment Management.
Very truly yours,
PIONEER DIVERSIFIED HIGH INCOME TRUST
By:
----------------------------------
Name:
Title:
UBS SECURITIES LLC INDEMNIFICATION AGREEMENT
May 30, 2007
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In connection with the engagement of UBS Securities LLC ("UBS
Securities") to advise and assist the undersigned (the "Company") as set forth
in the Agreement dated May [ ], 2007 between the Company and UBS Securities
(the "Agreement"), in the event that UBS Securities 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") (i) in connection with or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in information with respect to the Pioneer Diversified High
Income Trust (the "Trust") made public by or as authorized by the Trust or any
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading or (ii) otherwise in connection with or arising out of the
Agreement or the services to be provided thereunder, the Company agrees to
indemnify, defend and hold UBS Securities harmless to the fullest extent
permitted by law, from and against any losses, claims, damages, liabilities and
expenses in connection with or arising out of the Agreement or the services to
be provided thereunder (a "Covered Claim"), except, in the case of clause (ii)
above only, 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 negligence or willful misconduct of UBS
Securities. In addition, in the event that UBS Securities becomes involved in
any capacity in any Proceeding which relates to a Covered Claim, the Company
will reimburse UBS Securities for its legal and other expenses (including the
cost of any investigation and preparation) as such expenses are incurred by UBS
Securities 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 UBS Securities, 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 UBS
Securities has been retained to perform financial services bears to the fees
paid to UBS Securities under the Agreement; provided, that in no event shall the
Company contribute less than the amount necessary to assure that UBS Securities
is not liable for losses, claims, damages, liabilities and expenses in excess of
the amount
of fees actually received by UBS Securities 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 Securities, on the other
hand. The Company will not settle any Proceeding in respect of which indemnity
may be sought hereunder, whether or not UBS Securities is an actual or potential
party to such Proceeding, without UBS Securities' prior written consent. For
purposes of this Indemnification Agreement, UBS Securities shall include UBS
Securities LLC, any of its affiliates, each other person, if any, controlling
UBS Securities 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 Securities 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 Securities'
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 UBS Securities 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
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XXXXXX XXXXXXXX XXXXX FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL
HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND THE
COMPANY AND UBS SECURITIES 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 SECURITIES OR ANY INDEMNIFIED PARTY. EACH OF UBS SECURITIES 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 UBS Securities' 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,
PIONEER INVESTMENT MANAGEMENT, INC.
By:
----------------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
UBS SECURITIES LLC
By:
-----------------------------------
Name: Xxxx X. Reit
Title: Managing Director
By:
-----------------------------------
Name: Xxxx Xxx
Title: Executive Director
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