Exhibit 99(h)(5)
FORM OF ADDITIONAL COMPENSATION AGREEMENT
ADDITIONAL COMPENSATION AGREEMENT (the "Agreement"), dated as of August
[ ], 2005, between [ ] ("[ ] ") and Claymore Advisors, LLC ("Claymore").
WHEREAS, Old Mutual/Claymore Long-Short 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;
WHEREAS, Claymore is the investment adviser of the Fund;
WHEREAS, [ ] is acting as co-underwriter in an offering of the
Fund's common shares;
WHEREAS, Claymore desires to provide additional compensation to [ ]
for acting as an underwriter in an offering of the Fund's common shares; and
WHEREAS, Claymore 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) Claymore hereby employs [ ], for the period and on the terms
and conditions set forth herein, to provide the following
services at the reasonable request of Claymore:
(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
Claymore in connection therewith; and
(3) information to and consult with Claymore with respect
to applicable strategies designed to address market
value discounts, if any.
(b) At the request of Claymore, [ ] shall limit or cease any
action or service provided hereunder to the extent and for the
time period requested by Claymore; provided, however, that
pending termination of this Agreement as provided for in
Section 6 hereof, any such limitation or cessation shall not
relieve Claymore of its payment obligations pursuant to
Section 2 hereof.
(c) [ ] will promptly notify Claymore, 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
Claymore in connection with the performance of services by
[ ] under this Agreement.
2. Claymore shall pay [ ] a fee computed weekly and payable quarterly in
arrears commencing [ ], 2005 at an annualized rate of [ ]% of the
Fund's total managed assets (as defined in the Prospectus dated August
[ ], 2005 (the "Prospectus")) 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 (including all Initial Securities and
Option Securities as such terms are described in the Purchase
Agreement, dated August [ ], 2005, by and among the Fund, Claymore,
Analytic Investors, Inc. and each of the Underwriters named therein
(the "Purchase Agreement"). The sum total of the aggregate amount of
these fee payments 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. All
quarterly fees payable hereunder shall be paid to ▇▇▇▇▇▇▇ ▇▇▇▇▇ within
15 days following the end of each calendar quarter.
3. Claymore 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. Claymore 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 advisers), so long as [ ] ' services to Claymore are not
impaired thereby.
6. The term of this Agreement shall commence upon the date referred to
above and shall be in effect until [ ].
7. Claymore will furnish [ ] with such information as [ ] believes
appropriate to its assignment hereunder (all such information so
furnished being the "Information"). Claymore 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 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 Claymore's knowledge, the Information to be
furnished by Claymore 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. Claymore will promptly
notify [ ] if it learns of any material inaccuracy or misstatement
in, or material omission from, any Information delivered to [ ].
8. Claymore agrees that [ ] shall have no liability to Claymore 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 [ ]. Claymore 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.
2
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 Claymore and [ ] consent
to the jurisdiction of such courts and personal service with respect
thereto. Each of [ ] and Claymore 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. Claymore agrees
that a final judgment in any proceeding or counterclaim brought in any
such court shall be conclusive and binding upon Claymore and may be
enforced in any other courts to the jurisdiction of which Claymore 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
Claymore.
13. All notices required or permitted to be sent under this Agreement shall
be sent, if to Claymore:
Claymore Advisors, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or if to [ ]:
[ ]
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 US mail with certified postage prepaid
or when actually received, whether by hand, express delivery service or
facsimile transmission, whichever is earlier.
14. 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]
3
IN WITNESS WHEREOF, the parties hereto have duly executed this
Additional Compensation Agreement as of the date first above written.
CLAYMORE ADVISORS, LLC [ ]
By: _________________________ By: __________________________
Name: Name:
Title: Title:
4
[ ] INDEMNIFICATION AGREEMENT
August [ ], 2005
[ ]
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 August
[ ], 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, bad faith 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 actual or potential party to such
Proceeding, without [ ] ' prior written consent. For purposes of this
Indemnification
5
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 [ ] ' 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, bad
faith 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.
6
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of [ ] ' 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,
CLAYMORE ADVISORS, LLC
By: ______________________
Name:
Title:
Accepted and agreed to as of the date first above written:
[ ]
By ______________________
Name:
Title:
7