Exhibit (K)(5)
FORM OF STRUCTURING FEE AGREEMENT
[ ], 2006
Wachovia Capital Markets, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement"), by and among ▇▇▇▇▇ ▇▇▇▇▇ Tax-Managed Diversified
Equity Income Fund (the "Fund"), ▇▇▇▇▇ ▇▇▇▇▇ 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 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.
10. Disclaimer of Liability of Trustees and Beneficiaries. A copy of
the Agreement and Declaration of Trust of each of the Fund and the Adviser is on
file with the Secretary of State of The Commonwealth of Massachusetts, and
notice hereby is given that this Structuring Fee Agreement is executed on behalf
of the Fund and the Adviser, respectively, by an officer or Trustee of the Fund
or the Adviser, as the case may be, in his or her capacity as an officer or
Trustee of the Fund or the Adviser, as the case may be, and not individually and
that the obligations under or arising out of this Structuring Fee Agreement are
not binding upon any of the Trustees, officers or shareholders individually but
are binding only upon the assets and properties of the Fund or the Adviser, as
the case may be.
[END OF TEXT]
2
This Agreement shall be effective as of the date first written above.
▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
By:
------------------------
Name:
Title:
Agreed and Accepted:
WACHOVIA CAPITAL MARKETS, LLC
By:
-------------------------
Name:
Title:
[Structuring Fee Agreement]
INDEMNIFICATION AGREEMENT
[ ], 2006
Wachovia Capital Markets, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with the engagement of Wachovia Capital Markets, LLC (the "Bank")
to advise and assist the undersigned (together with its affiliates and
subsidiaries, referred to as the "Company") with the matters set forth in the
Structuring Fee Agreement dated [ ], 2006 between the Company and the Bank (the
"Agreement"), in the event that the Bank 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 the Bank harmless to the fullest extent permitted by law, from and
against any losses, claims, damages, liabilities and expenses 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 the Bank.
In addition, in the event that the Bank 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 the Bank for its legal and other
expenses (including the cost of any investigation and preparation) as such
expenses are incurred by the Bank in connection therewith. Promptly as
reasonably practicable after receipt by the Bank of notice of the commencement
of any Proceeding, the Bank will, if a claim in respect thereof is to be made
against the Bank 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 it from any liability which it may have otherwise than on account of
this indemnity agreement. Counsel to the indemnified parties shall be selected
as follows: counsel to the Underwriters and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall be selected by Wachovia; counsel to the Adviser, its
directors, trustees, members and each of its officers who signed the
Registration Statement and each person, if any, who controls the Adviser within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by the Adviser. 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
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
the
4
Underwriters and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Adviser, and each of its directors,
trustees, members and each of its officers who signed the Registration Statement
and each person, if any, who controls the Adviser within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, in each case in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. 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 under this
Section 6 or Section 7 hereof (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 Bank, 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 Bank is 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, the Bank shall not be entitled to contribution from the
Company if it is determined that the Bank was guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) 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 the Bank is an actual or potential party to such Proceeding,
without the Bank's prior written consent (which consent shall not be
5
unreasonably withheld). For purposes of this Indemnification Agreement, the Bank
shall include 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, 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 will not be liable to the Bank for any such losses, claims,
damages, liabilities or expenses arising from the sale of securities by ▇▇▇▇▇
▇▇▇▇▇ Tax-Managed Premium and Dividend Income Fund to any person if a copy of a
prospectus required to be delivered in connection with such sale which has been
furnished to the underwriters of the offering of the securities (within a
reasonable amount of time prior to such sale) shall not have been sent, mailed
or given to such person, at or prior to the written confirmation of the sale of
such securities to such person, but only if and to the extent that such
prospectus, if so sent or delivered, would have cured the defect giving rise to,
and been a complete defense against the person asserting, such loss, claim,
damage or liability.
The Company agrees that neither the Bank 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 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 BANK 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 OF
THE BANK AND THE COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR
6
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.
7
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of the Bank'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,
▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
By:
-------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
WACHOVIA CAPITAL MARKETS, LLC
By:
--------------------
Name:
Title:
[Structuring Fee Agreement]