Exhibit 99.(h)(ii)
Exhibit (h)(ii)
ADDITIONAL COMPENSATION AGREEMENT
ADDITIONAL COMPENSATION AGREEMENT (the "Agreement"), dated as of [ ],
2004, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and Claymore Advisors, LLC ("Claymore").
WHEREAS, Madison/Claymore Covered Call 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 and the administrator of the
Fund;
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as lead underwriter in an offering of
the Fund's common shares; WHEREAS, Claymore desires to provide additional
compensation to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for acting as lead 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, Merrill Lynch 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 5 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 [ ], 2004 at an annualized rate of
0.15% of the Fund's Managed Assets (as defined below) for a term as
described in Section 5 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 dated [ ], 2004
(including all Initial Securities and Option Securities as such terms are
described in the Purchase Agreement, dated [ ], 2004, by and among the
Fund, Claymore and each of the Underwriters named therein (the "Purchase
Agreement"). The sum total of this fee, the fee paid to Claymore
Securities, Inc. for its distribution assistance 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. "Managed Assets" is defined as the total assets of the Fund
(including any assets attributable to any Preferred Shares that may be
outstanding or otherwise attributable to the use of leverage) minus the
sum of accrued liabilities (other than debt representing financial
leverage). 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
paragraph 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 so long as Claymore acts as the investment adviser
to the Fund pursuant to the Investment Management Agreement (as such term
is defined in the Purchase Agreement) or other subsequent advisory
agreement.
7. Claymore will ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
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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 agreement 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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇
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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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Additional
Compensation Agreement as of the date first above written.
CLAYMORE ADVISORS, LLC ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. INDEMNIFICATION AGREEMENT
[ ], 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with the engagement of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") 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 [ ], 2004 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 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
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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 Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, 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 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.
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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:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
--------------------
Name:
Title:
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