EXHIBIT (h)(5)
FORM OF
SUB-PLACEMENT AGENT AGREEMENT
Eaton Vance Distributors, Inc.
Two International Place
Boston, Massachusetts 02110
______________, 2020
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
RE: At-the-Market Offerings by Eaton Vance [ ]
Ladies and Gentlemen:
From time to time
Eaton Vance Distributors, Inc. (the “Distributor”, “we” or “us”) will
act as manager of registered at-the-market offerings by Eaton Vance [ ],
a Massachusetts business trust (the “Fund”), of up to [
] common shares (the “Shares”) of beneficial interest, par value $0.01 per share, of the Fund (the “Common
Shares”). In the case of such offerings, the Fund has agreed with the Distributor to issue and sell through or to the
Distributor, as sales agent and/or principal, the Shares.
We hereby agree
to retain UBS Securities LLC (the “Agent” or “you”) as a sub-placement agent with respect
to the offerings of the Shares to be issued and sold by the Fund (the “Offerings”), and you agree to act in
such capacity, all upon, and subject to, the terms and conditions set forth below:
SECTION
1. Description of Offerings.
(a) The Shares are
to be sold on a daily basis or otherwise as shall be agreed to by the Fund and the Distributor on any day (each, an “Offering
Date”) that is a trading day for the exchange on which the Fund’s Shares are listed and primarily trade (the “Stock
Exchange”) (other than a day on which the Stock Exchange is scheduled to close prior to its regular weekday closing time).
Promptly after the Fund and the Distributor have determined the maximum amount of the Shares to be sold by the Distributor for
any Offering Date, the Distributor shall advise the Agent of such amount, which shall not in any event exceed the amount available
for issuance under the currently effective Registration Statement (as defined below). Subject to the terms and conditions hereof,
the Agent shall use its reasonable best efforts to sell all of the Shares designated in accordance with the plan of distribution
set forth in the Prospectus Supplement (as defined below). The gross sales price of the Shares sold under this Section 1(a)
shall be the market price at which the Agent sells such Shares.
(b) Notwithstanding
the foregoing, the Distributor may instruct the Agent by telephone (confirmed promptly by e-mail or telecopy) not to sell the Shares
if such sales cannot be effected at or above a price agreed to by the Fund and the Distributor with respect to such Shares. In
addition, the Distributor may, upon notice to the Agent by telephone (confirmed promptly by e-mail or telecopy), suspend the offering
of the Shares at any time; provided, however, that such suspension or termination shall not affect or impair the parties’
respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(c) The Agent agrees
not to make any sales of the Shares on behalf of the Distributor pursuant to this Section 1, other than through transactions
for which compliance with Rule 153 under the Securities Act will satisfy the prospectus delivery requirements of Section 5(b)(2)
of the Securities Act.
(d) The compensation
to the Agent, as a sub-placement agent of the Distributor for each sale of the Shares pursuant to this Section 1, shall
be the Applicable Selling Agent Commission with respect to the Shares sold, multiplied by the Gross Sales Proceeds, as further
described in the Addendum to this Sub-Placement Agent Agreement (the “Agreement”). The Agent shall not be responsible
for any fees imposed by any governmental or self-regulatory organization on the Fund or the Distributor in respect of such sales.
The compensation to the Distributor, as manager of registered at-the-market offerings by the Fund, for each sale of the Shares
pursuant to this Section 1, before any fees imposed by any governmental or self-regulatory organization on the Fund or the
Distributor in respect of such sales, shall be the Distributor Retention with respect to the Shares sold, multiplied by the Gross
Sales Proceeds, as further described in the Addendum to this Agreement.
(e) The Agent shall
provide written confirmation to the Distributor following the close of trading on the Stock Exchange on each Offering Date setting
forth for each sale the number of Shares sold, the time of sale, the Gross Sales Price per Share, the compensation payable to the
Distributor with respect to such sales, and the compensation payable by the Distributor to the Agent with respect to such sales.
(f) Settlement for
sales of the Shares pursuant to this Section 1 will occur on the second business day following the date on which such sales
are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for
settlement on such date shall be delivered by the Distributor to the Agent against payment of the Gross Proceeds for the sale of
such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Agent’s account at The
Depository Trust Company in return for payments in same day funds delivered to the account designated by the Distributor. If the
Distributor shall default on its obligation to deliver the Shares on any Settlement Date, subject to the terms of Section 4
herein, the Distributor shall (A) hold the Agent harmless against any reasonable loss, claim or damage arising from or as
a result of such default by the Distributor and (B) pay the Agent any commission to which it would otherwise be entitled absent
such default. If the Agent breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares delivered
by the Distributor, the Agent will pay the Distributor interest based on the effective overnight Federal Funds rate.
(g) In connection
with this Agreement and the Offerings, the Distributor shall provide to the Agent, no more than once per calendar quarter, (i)
a certificate signed by the Chief Executive Officer, the Chief Legal Officer, the Chief Administrative Officer, the Treasurer,
the President, a Director or a Senior Vice President of the Distributor to the effect that (A) the representations and warranties
of the Distributor in this Agreement are true and correct with the same force and effect as though expressly made at and as of
the date thereof and the Distributor has performed or complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to the date thereof, (B) to their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened
by the Securities and Exchange Commission (the “Commission”) and (C) subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change or
development involving a prospective material adverse change to the business, properties, financial condition or results of operations
of the Fund; (ii) a certificate signed by the Secretary or Assistant Secretary of the Distributor relating to authorization, capacity
and incumbency matters; and (iii) such other certificates and documents related to the Offerings at the Agent’s reasonable
request.
SECTION
2. Representations and Warranties by the Distributor. The Distributor represents, warrants to and agrees with the
Agent, as of the date hereof and as of each Offering Date and Settlement Date, that:
(a) A registration
statement on Form N-2 (File No. 333-[ ]) (the “Registration
Statement”) (i) has been prepared by the Fund in conformity with the requirements of the Securities Act of 1933, as amended,
and the rules and regulations thereunder (collectively called the “Securities Act”) and the Investment Company
Act of 1940, as amended, and the rules and regulations thereunder (collectively called the “1940 Act”); (ii)
has been filed with the Commission under the Securities Act and the 1940 Act; and (iii) heretofore became, and is, effective; the
Registration Statement sets forth the terms of the offering, sale and plan of distribution of the Shares and contains additional
information concerning the Fund and its business; no stop order of the Commission preventing or suspending the use of any Basic
Prospectus (as defined below), the Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness
of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Fund’s
knowledge, are contemplated by the Commission. Except where the context otherwise requires, “Registration Statement,”
as used herein, means, collectively, the various parts of the registration statement, as amended at the time of effectiveness for
purposes of Section 11 of the Securities Act (the “Effective Time”), as such section applies to the Distributor,
including (1) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, and (2)
any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 497(c) and/or
Rule 497(h) under the Securities Act, to the extent such information is deemed to be part of the registration statement at the
Effective Time. “Basic Prospectus,” as used herein, means the final prospectus filed as part of the Registration Statement,
including the related statement of additional information, together with any amendments or supplements thereto as of the date of
the Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the
final prospectus supplement, including the related statement of additional information, relating to the Shares, filed by the Fund
with the Commission
pursuant to Rule 497(c) and/or Rule
497(h) under the Securities Act on or before the second business day after the date hereof (or such earlier time as may be required
under the Securities Act), in the form furnished by the Fund to the Distributor in connection with the offering of the Shares.
Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together
with the Basic Prospectus attached to or used with the Prospectus Supplement. Any reference herein to the registration statement,
the Registration Statement, any Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include
the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated
Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated
Documents.
(b) The Fund is duly
registered under the 1940 Act as a closed-end management investment company. A notification of registration of the Fund as an investment
company under the 1940 Act on Form N-8A (the “1940 Act Notification”) has been prepared by the Fund in conformity
with the 1940 Act and has been filed with the Commission and, at the time of filing thereof and at the time of filing any amendment
or supplement thereto, conformed in all material respects with all applicable provisions of the 1940 Act. The Fund has not received
any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration
Statement (or any amendment or supplement to either of them). No person is serving or acting as an officer, trustee or investment
adviser of the Fund except in accordance with the provisions of the 1940 Act and the Investment Advisers Act of 1940, as amended
and the rules and regulations thereunder.
(c) The Registration
Statement, the 1940 Act Notification and the Prospectus as from time to time amended or supplemented each complied when it became
effective or was filed, complies as of the date hereof and, as amended or supplemented, will comply, at the time of purchase,
each additional time of purchase, if any, and at all times during which a prospectus is required by the Securities Act to be delivered
in connection with any sale of Shares, in all material respects, with the requirements of the Securities Act and the 1940 Act;
the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading; the 1940 Act Notification
did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date such Basic Prospectus
was filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and
the end of the period during which a prospectus is required by the Securities Act to be delivered in connection with any sale
of Shares did or will the Prospectus, as from time to time amended or supplemented, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Distributor does not make any representation or warranty
with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and in conformity with
information concerning the Agent and furnished in writing by the Agent or on the Agent’s behalf to the Distributor or the
Fund expressly for use in the Registration Statement or the Prospectus. The Agent confirms that the seventh paragraph under the
heading “Plan of Distribution” in the Prospectus Supplement was the only information furnished in writing to the Distributor
and the Fund by or on behalf of the Agent expressly for use in the Prospectus.
(d) The financial
statements incorporated by reference in the Registration Statement or the Prospectus, together with the related notes and schedules,
present fairly the financial position of the Fund as of the dates indicated and the results of operations, cash flows and changes
in shareholders’ equity of the Fund for the periods specified and have been prepared in compliance in all material respects
with the requirements of the Securities Act, the 1940 Act and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and in conformity in all material respects with U.S. generally accepted accounting principles applied on a consistent
basis during the periods involved; the other financial and statistical data contained or incorporated by reference in the Registration
Statement or the Prospectus are accurately and fairly presented and prepared on a basis consistent with the financial statements
and books and records of the Fund; there are no financial statements that are required to be included or incorporated by reference
in the Registration Statement, any Basic Prospectus or the Prospectus that are not included or incorporated by reference as required;
the Fund does not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits thereto); and all disclosures contained or incorporated by
reference in the Registration Statement or the Prospectus regarding “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) comply in all material respects with Item 10 of Regulation S-K under the
Securities Act, to the extent applicable.
(e) As of the date
of this Agreement, the Fund has an authorized and outstanding capitalization as set forth in the sections of the Registration Statement,
the Basic Prospectus and the Prospectus entitled “The Trust” and “Description of capital structure,” and,
with respect to any issuance and sale under this Agreement, the Fund shall have as of the date of the most recent amendment or
supplement to the Registration Statement or Prospectus, an authorized and outstanding capitalization as set forth in the sections
of the Registration Statement and the Prospectus entitled “The Trust” and “Description of capital structure”;
all of the issued and outstanding shares of capital stock, including the Common Shares, of the Fund have been duly authorized and
validly issued and are fully paid and non-assessable (except as described below and in the Registration Statement), have been issued
in material compliance with all applicable securities laws and were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right; the Shares will be duly listed, and admitted and authorized for trading, subject to official
notice of issuance, on the Stock Exchange.
(f) The Fund has
been duly formed, is validly existing and is in good standing as a voluntary association with transferable shares of beneficial
interest commonly referred to as a “Massachusetts business trust” under the laws of The Commonwealth of Massachusetts,
with full power and authority to own, lease and operate and conduct its business as described in the Registration Statement, the
Basic Prospectuses and the Prospectus and to issue, sell and deliver the Shares as contemplated herein. The Fund is duly qualified
to do business as a foreign entity and is in good standing in each jurisdiction where the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, (i)
have a material adverse effect on the business, properties, financial condition or results of operations of the Fund , (ii) prevent
or materially interfere with consummation of the transactions contemplated hereby or (iii) result in the delisting of Common Shares
from the Stock Exchange (the occurrence of any such effect or any such prevention or interference or any such result described
in the foregoing clauses (i), (ii) and (iii) being herein referred to as a “Material Adverse Effect”).
(g) The Shares have
been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable (except as described below and in the Registration Statement) and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and similar rights; the Shares, when issued and delivered against payment
therefor as provided herein, will be free of any restriction upon the voting or transfer thereof pursuant to the Fund’s Declaration
of Trust or bylaws or any agreement or other instrument to which the Fund is a party. The capital stock of the Fund, including
the Shares, conforms in all material respects to each description thereof, if any, contained or incorporated by reference in the
Registration Statement, any Basic Prospectus or the Prospectus; and the certificates for the Shares, if any, are in due and proper
form. The Fund is in material compliance with the rules of the Stock Exchange, including, without limitation, the requirements
for continued listing of the Common Shares on the Stock Exchange and the Fund has not received any notice from the Stock Exchange
regarding the delisting of the Common Shares from the Stock Exchange.
(h) The Distributor
has full corporate power and authority to enter into this Agreement and the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by the Distributor. This Agreement constitutes a valid and binding agreement of the
Distributor and is enforceable against the Distributor in accordance with its terms, except as the enforceability hereof and thereof
may be limited by applicable bankruptcy, insolvency, reorganization and similar laws affecting creditors’ rights generally
and moratorium laws in effect from time to time and by equitable principles restricting the availability of equitable remedies.
(i) No approval, authorization,
consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation,
the Stock Exchange), or approval of the shareholders of the Fund, is required in connection with the issuance and sale of the Shares
or the consummation by the Fund of the transactions contemplated hereby, other than (i) the registration of the Shares under the
Securities Act and the 1940 Act, which has been effected, (ii) the listing of the Shares with the Stock Exchange, upon official
notice of issuance, (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which
the Shares are being offered by the Distributor or (iv) any necessary qualification under the Conduct Rules of the Financial Industry
Regulatory Authority, Inc. (“FINRA”).
SECTION 3.
Additional Covenants.
(a) The Agent hereby
confirms that it is actually engaged in the investment banking and securities business and is a member in good standing with FINRA
and hereby agrees that it will undertake to comply with all applicable FINRA rules (as amended from time to time, including without
limitation, any successor provision) in connection with acting as sub-placement agent for the sale of the Shares. The Agent further
agrees that in acting as sub-placement agent for the sale of the Shares, it will comply with all applicable laws, rules and regulations,
including the applicable provisions of the Securities Act and the Exchange Act, the applicable rules and regulations of the Commission
thereunder, and the applicable rules and regulations of any state or any securities exchange or self-regulatory organization having
jurisdiction over the relevant Offering.
(b) The Agent hereby
agrees that in acting as sub-placement agent for the sale of the Shares, it will not use, authorize use of, refer to, or participate
in the planning for use of any written communication (as defined in Rule 405 under the Securities Act) concerning any Offering,
other than the Prospectus. The Agent further agrees that in acting as sub-placement agent for the sale of the Shares, it is not
authorized by the Distributor or the Fund or any other seller of the Shares offered pursuant to the Prospectus to give any information
or to make any representation not contained in the Prospectus in connection with the sale of such Shares.
(c) The Distributor
shall not be under any obligation to the Agent except for obligations assumed hereunder or in writing by the Distributor in connection
with any Offering. Nothing contained herein or in any communication in writing from us shall constitute the Distributor and the
Agent an association or partners with one another. If such parties should be deemed to constitute a partnership for Federal income
tax purposes, then the Agent elects to be excluded from the application of Subchapter K, Chapter 1, Subtitle A of the Internal
Revenue Code of 1986 and agrees not to take any position inconsistent with that election. The Agent authorizes the Distributor,
in its discretion, to execute and file on its behalf such evidence of that election as may be required by the Internal Revenue
Service. In connection with any Offering, each party shall be liable for its proportionate amount of any tax, claim, demand or
liability that may be asserted against it alone, based upon the claim that either of them constitutes an association, an unincorporated
business or other entity, including, in each case, its proportionate amount of any expense incurred in defending against any such
tax, claim, demand or liability.
(d) The parties acknowledge
and agree that all share related numbers contained in this Agreement shall be adjusted to take into account any stock split effected
with respect to the Shares.
(e) The Agent shall
at all times comply with the offering requirements as set forth under the heading “Plan of Distribution” in the Prospectus.
(f) The Fund shall
use its best efforts to list, subject to official notice of issuance, the Shares on the Stock Exchange and to maintain such listing.
SECTION
4. Indemnification and Contribution.
(a) The Distributor
agrees to indemnify, defend and hold harmless the Agent, its partners, directors and officers, and any person who controls the
Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, from and against any reasonable loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which the Agent or any such person may incur under the Securities Act, the 1940 Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any material
breach of any representation, warranty, covenant or agreement of the Distributor contained in this Agreement, (ii) any material
violation by the Distributor of any law, rule or regulation (including any rule of any self-regulatory organization) applicable
to the Offerings, or (iii) any untrue statement of a material fact appearing in the Registration Statement or Prospectus or omission
to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading, except to the extent such statements were provided in writing by the Agent for inclusion
in the Registration Statement or Prospectus.
(b) The Agent agrees
to indemnify, defend and hold harmless the Distributor, the Fund, their partners, trustees, directors and officers, and any person
who controls the Distributor or the Fund within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which the Distributor or any such person may incur under the Securities Act, the
1940 Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of
or is based upon (i) any material breach of any representation, warranty, covenant or agreement of the Agent contained in this
Agreement or (ii) any material violation by the Agent of any law, rule or regulation (including any rule of any self-regulatory
organization), or (iii) any untrue statement or omission made in the Registration Statement or the Prospectus in reliance upon
and in conformity with information furnished by the Agent.
(c) An indemnified
person under Section 4 of this Agreement (the “Indemnified Party”) shall give written notice to the other
party (the “Indemnifying Party”) of any loss, damage, expense, liability or claim in respect of which the Indemnifying
Party has a duty to indemnify such Indemnified Party under Section 4(a) or (b) of this Agreement (a “Claim”),
specifying in reasonable detail the nature of the loss, damage, expense, liability or claim for which indemnification is sought,
except that any delay or failure so to notify such other party shall only relieve such other party of its obligations hereunder
to the extent, if at all, that you are actually prejudiced by reason of such delay or failure.
(d) If a Claim results
from any action, suit or proceeding brought or asserted against an Indemnified Party, the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses.
The Indemnified Party shall have the right to employ separate counsel in such action, suit or proceeding and participate in such
defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the Indemnifying
Party has agreed in writing to pay such fees and expenses, (ii) the Indemnifying Party has failed within
a reasonable time to assume the defense
and employ counsel or (iii) the named parties to any such action, suit or proceeding (including any impleaded parties) include
both such Indemnified Party and Indemnifying Party and such Indemnified Party shall have been advised by its counsel that representation
of such Indemnified Party and Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests
between the Indemnifying Party and the Indemnified Party (in which case the Indemnifying Party shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such Indemnified Party). It is understood, however, that the Indemnifying
Party shall, in connection with any one action, suit or proceeding or separate but substantially similar or related actions, suits
or proceedings in the same jurisdiction arising out of the same general allegations or circumstances be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified
Parties not having actual or potential differing interests with the Indemnifying Party or among themselves, which firm shall be
designated in writing by an authorized representative of such parties and that all such fees and expenses shall be reimbursed promptly
as they are incurred. The Indemnifying Party shall not be liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Indemnifying Party agrees to indemnify and hold harmless any Indemnified Party from and against
any loss, liability, damage or expense by reason by such settlement or judgment.
(e) With respect to
any Claim not within Paragraph (d) of Section 4 hereof, the Indemnifying Party shall have 20 days from receipt of
notice from the Indemnified Party of such Claim within which to respond thereto. If the Indemnifying Party does not respond within
such twenty-day period, it shall be deemed to have accepted responsibility to make payment and shall have no further right to contest
the validity of such Claim. If the Indemnifying Party notifies the Indemnified Party within such twenty-day period that it rejects
such Claim in whole or in part, the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified
Party under applicable law.
(f) If the indemnification
provided for in this Section 4 is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless
in respect of any losses, damages, expenses, liabilities or claims referred to therein, then each applicable Indemnifying Party
shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities
or claims in such proportion as is appropriate to reflect (i) the relative benefits received by the Indemnified Party and its Affiliates
(treated jointly as one person for this purpose), on the one hand, and the Indemnifying Party and its Affiliates, on the other
hand, from the offering of the Shares; or (ii) if, but only if, the allocation provided for in clause (i) is not permitted by applicable
law, 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 Indemnified Party and its Affiliates (treated jointly as one person for this purpose), on the one hand, and of the
Indemnifying Party and its Affiliates, on the other, in connection with any statements or omissions or other matters which resulted
in such losses, damages, expenses, liabilities or claims, as well as any other relevant equitable considerations. The relative
benefits received by the Indemnified Party and its Affiliates (treated jointly as one person for this purpose), on the one hand,
and the Indemnifying Party and its Affiliates, on the other, shall be deemed to be in the
same respective proportions as the total
proceeds from the Offering received by each such party and its Affiliates bear to the aggregate public offering price of the Shares.
The relative fault of the parties and their Affiliates shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by such
party or its Affiliate, on one hand, or by the other party or its Affiliate on the other hand and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, damages, expenses, liabilities and claims referred to in this subsection shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in connection with investigating, preparing to defend
or defending any Proceeding.
(g) The parties agree
that it would not be just and equitable if contribution pursuant to this Section 4 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable considerations referred to in subsection (f)
above. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(h) The indemnity
and contribution agreements contained in this Section 4 and the covenants, warranties and representations of the parties
contained in this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Agent,
its partners, directors or officers or any person (including each partner, officer or director of such person) who controls the
Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on behalf of the Distributor,
its directors or officers or any person who controls the Distributor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and shall survive any termination of this Agreement or the issuance and delivery of the Shares.
SECTION
5. Representations and Agreements to Survive Delivery. The representations, warranties, covenants and agreements
of the parties contained in this Agreement, including, without limitation, the indemnity agreement contained in Section 4
hereof, shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any party
or any person controlling any party, or their directors or officers, (ii) acceptance of any Shares and payment therefor and (iii)
any termination of this Agreement.
SECTION
6. Termination.
(a) This Agreement
shall continue in full force and effect until terminated by either party by five days' written notice to the other; provided,
that if this Agreement has become effective with respect to any Offering pursuant to this Agreement, this Agreement may not be
terminated by either party with respect to such Offering.
(b) This Agreement
shall remain in full force and effect unless terminated pursuant to Section 6(a) above or otherwise by mutual agreement
of the parties; provided that any such termination by mutual agreement shall in all cases be deemed to provide that Section
4 and Section 5 shall remain in full force and effect.
(c) Any termination
of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Distributor or the Agent, as the
case may be. If such termination shall occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in
accordance with the provisions of Section 1 of this Agreement.
SECTION
7. Notices. Except as otherwise herein provided, all statements, requests, notices and agreements under this Agreement
shall be in writing and delivered by hand, overnight courier, mail or facsimile and, if to the Distributor, it shall be sufficient
in all respects if delivered or sent to:
Eaton Vance Distributors, Inc.
Two International Place
Boston, Massachusetts 02110
Attn: Frederick S. Marius, General
Counsel
and if to the Agent, it shall be sufficient
in all respects if delivered or sent to:
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Attn:
Each party to this
Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such
purpose.
SECTION
8. Parties in Interest. The Agreement herein set forth has been and is made solely for the benefit of the Distributor,
the Fund and the Agent and to the extent provided in Section 4 of this Agreement, the controlling persons, trustees, directors
and officers referred to in such section, and their respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from the
Distributor) shall acquire or have any right under or by virtue of this Agreement.
SECTION
9. No Fiduciary Relationship. The Distributor hereby acknowledges that the Agent is acting solely as sub-placement
agent in connection with the sale of the Shares and that the Agent is acting pursuant to a contractual relationship created solely
by this Agreement entered into on an arm’s length basis, and in no event do the parties intend that the Agent act or be responsible
as a fiduciary to the Distributor or the Fund, their respective management, shareholders or creditors, or any other person in connection
with any activity that the Agent may undertake or have undertaken in furtherance of the sale of the Shares, either before or after
the date hereof.
SECTION
10. Entire Agreement. This Agreement constitutes the entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof.
SECTION 11. Counterparts;
Heading. This Agreement may be signed by the parties in one or more counterparts which together shall constitute one and the
same agreement among the parties. The Section headings in this Agreement have been inserted as a matter of convenience of reference
and are not a part of this Agreement.
SECTION
12. Law; Construction. 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”), directly or indirectly, shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
SECTION
13. Submission to Jurisdiction. 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 jurisdiction over the adjudication of such matters, and each
of the Distributor and the Agent consents to the jurisdiction of such courts and personal service with respect thereto. Each of
the Distributor and the Agent 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 Distributor or any indemnified party.
Each of the Distributor and the Agent (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders
and affiliates) waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort
or otherwise) in any way arising out of or relating to this Agreement. Each of the Distributor and the Agent agrees that a final
judgment in any such action, proceeding or counterclaim brought in any such court shall be conclusive and binding upon the Distributor
and the Agent and may be enforced in any other courts to the jurisdiction of which the Distributor or the Agent is or may be subject,
by suit upon such judgment.
SECTION
14. Successors and Assigns. This Agreement shall be binding upon the Distributor and the Agent and their successors
and assigns and any successor or assign of any substantial portion of the Distributor’s and the Agent’s respective
businesses and/or assets.
If the foregoing
correctly sets forth the understanding between the Distributor and the Agent, please so indicate in the space provided below for
that purpose, whereupon this Agreement and your acceptance shall constitute a binding agreement between the Distributor and the
Agent. Alternatively, the execution of this Agreement by the Distributor and the acceptance by or on behalf of the Agent may be
evidenced by an exchange of telegraphic or other written communications.
| Very truly yours, |
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| EATON VANCE DISTRIBUTORS, INC. |
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| By: |
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Name: |
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Title: |
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ACCEPTED as of the date
first above written
| UBS SECURITIES LLC |
| (as sub-placement agent) |
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| By: |
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Name: |
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Title: |
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| By: |
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Name: |
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Title: |
ADDENDUM
TO
SUB-PLACEMENT AGENT AGREEMENT
BETWEEN
EATON VANCE DISTRIBUTORS, INC.
AND
UBS SECURITIES LLC
Compensation payable to
the Agent for acting as a sub-placement agent on behalf of the Distributor with respect to a specified sale of Shares pursuant
to this Agreement shall be determined by multiplying the Gross Sales Proceeds by the Applicable Selling Agent Commission as set
forth in the table below:
|
Gross Sales Commission |
Distributor Retention |
Applicable Selling Agent Commission |
| 1.00% |
0.20% |
0.80% |
Where:
“Gross Sales Proceeds”
with respect to each sale of Shares shall be the Gross Sales Price multiplied by the number of Shares sold;
“Gross Sales Price”
with respect to each sale of Shares sold pursuant to this Agreement shall be the gross sales price per share of such Shares.
