Exhibit (k)(6)
FORM OF STRUCTURING FEE AGREEMENT
July [__], 2007
Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated July [__], 2007 (the
"Underwriting Agreement"), by and among Xxxxx Xxxxx Risk-Managed Diversified
Equity Income Fund (the "Fund"), Xxxxx Xxxxx Management (the "Adviser"), Rampart
Investment Management Company, Inc. (the Sub-Adviser) and each of the
Underwriters named therein, with respect to the issue and sale of the Fund's
Common Shares, as described therein. Capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Underwriting
Agreement.
1. Fee. In consideration of your services in offering advice to the Advisor
relating to the structure and design of the Fund and the organization of the
Fund as well as services related to the sale and distribution of the Fund's
Common Shares, the Adviser shall pay a fee to you in the aggregate amount of
$[__________] (the "Fee"). The Fee shall be paid on or before July [__], 2007.
The Fee shall be paid by wire transfer to the order of Wachovia Capital Markets,
LLC.
2. Term. This Agreement shall terminate upon the payment of the entire
amount of the Fee, as specified in Section 1 hereof.
3. Indemnification. The Adviser 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. Not an Investment Adviser; No Fiduciary Duty. The Adviser acknowledges
that you are 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 you, and
you are 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 Adviser hereby acknowledges that your engagement
under this Agreement is as an independent contractor and not in any other
capacity, including as a fiduciary. Furthermore, the Adviser agrees that it is
solely responsible for making its own judgments in connection with the matters
covered by this Agreement (irrespective of whether you have advised or are
currently advising the Adviser on related or other matters).
5. 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).
6. Assignment. This Agreement may not be assigned by any party without
prior written consent of the other party.
7. Amendment; Waiver. No provision of this Agreement may be amended or
waived except by an instrument in writing signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
9. 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 facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
[END OF TEXT]
This Agreement shall be effective as of the date first written above.
XXXXX XXXXX MANAGEMENT
By:
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Name:
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Title:
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Agreed and Accepted:
WACHOVIA CAPITAL MARKETS, LLC
By:
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Name:
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Title:
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INDEMNIFICATION AGREEMENT
July [__], 2007
Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of Wachovia Capital Markets, LLC (the
"Bank") to assist the undersigned, Xxxxx Xxxxx Management (together with its
affiliates and subsidiaries, the "Company") with respect to the matters set
forth in the Structuring Fee Agreement dated July [__], 2007 between the Company
and the Bank (the "Agreement"), in the event that the Bank, any of its
affiliates, each other person, if any, controlling the Bank or any of its
affiliates, their respective officers, current and former directors, employees
and agents, or the successors or assigns of any of the foregoing persons (the
Bank and each such other person or entity being referred to as an "Indemnified
Party") 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") with
respect to the services performed pursuant to and in accordance with the
Agreement, the Company agrees to indemnify, defend and hold each Indemnified
Party harmless to the fullest extent permitted by law, from and against any
losses, claims, damages, liabilities and expenses, including the fees and
expenses of counsel to the Indemnified Parties, with respect to the services
performed pursuant to and in accordance with 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 gross negligence or willful misconduct of such Indemnified Party. In
addition, in the event that an Indemnified Party becomes involved in any
capacity in any Proceeding with respect to the services performed pursuant to
and in accordance with the Agreement, the Company will reimburse such
Indemnified Party for its legal and other expenses (including the cost of any
investigation and preparation) as such expenses are incurred by such Indemnified
Party in connection therewith. Promptly as reasonably practicable after receipt
by an Indemnified Party of notice of the commencement of any Proceeding, such
Indemnified Party will, if a claim in respect thereof is to be made under this
paragraph, notify the Company in writing of the commencement thereof; but the
failure so to 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.
Counsel to the Indemnified Parties shall be selected by the Bank. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the Indemnified Parties) also be counsel to the
Indemnified Party. No indemnifying party shall, without the prior written
consent of the Indemnified Parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought hereunder (whether or not the Indemnified Parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each Indemnified Party from all liability
arising out of such litigation, investigation, proceeding or claim 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 any Indemnified Party.
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, on the one hand, and the Indemnified Parties, 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, 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, as the case may be, as a result of or in connection with the
transaction (whether or not consummated) for which the Bank has been retained to
perform services bears to the fees paid to the Bank under the Agreement;
provided, that in no event shall the Company contribute less than the amount
necessary to assure that the Indemnified Parties are not liable for losses,
claims, damages, liabilities and expenses in excess of the amount of fees
actually received by the Bank 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 Bank, on the other hand.
Notwithstanding the provisions of this paragraph, an Indemnified Party shall not
be entitled to contribution from the Company if it is determined that such
Indemnified Party was guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act of 1933, as amended) and the Company was
not guilty of such fraudulent misrepresentation. The Company will not settle any
Proceeding in respect of which indemnity may be sought hereunder, whether or not
an Indemnified Party is an actual or potential party to such Proceeding, without
the Bank's prior written consent (which consent shall not be unreasonably
withheld). 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 no Indemnified Party shall have any liability to
the Company or any person asserting claims on behalf of or in right of the
Company with respect to the services performed pursuant to and in accordance
with 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
gross negligence or willful misconduct of the Bank 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 THE INDEMNIFIED PARTIES 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 BANK OR ANY INDEMNIFIED PARTY. EACH INDEMNIFIED PARTY 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 Bank's engagement under the
Agreement. 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:
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Name:
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Title:
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Agreed and Accepted:
WACHOVIA CAPITAL MARKETS, LLC
By:
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Name:
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Title:
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