Exhibit 99. - h(vi)
December 20, 1999
ICC Distributors, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Re: Exclusive Placement Agent Agreement
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This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Deutsche Portfolios (to be renamed Flag Investors
Portfolio Trust) an open-end management investment company (the "Trust")
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), organized as a business trust under the laws of the State of New York,
has agreed that ICC Distributors, Inc., a Delaware corporation ("ICC"), shall be
the exclusive placement agent (the "Exclusive Placement Agent") of beneficial
interests ("Trust Interests") of each series of the Trust.
1. Services as Exclusive Placement Agent.
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1.1 ICC will act as Exclusive Placement Agent of the Trust Interests. In
acting as Exclusive Placement Agent under this Exclusive Placement Agent
Agreement, neither ICC nor its employees or any agents thereof shall make any
offer or sale of Trust Interests in a manner which would require the Trust
Interests to be registered under the Securities Act of 1933, as amended (the
"1933 Act").
1.2 All activities by ICC and its agents and employees as Exclusive
Placement Agent of Trust Interests shall comply with all applicable laws, rules
and regulations, including, without limitation, all rules and regulations
adopted pursuant to the 1940 Act by the Securities and Exchange Commission (the
"Commission").
1.3 Nothing herein shall be construed to require a Trust to accept any
offer to purchase any Trust Interests, all of which shall be subject to approval
by the Trust's Board of Trustees or their delegates.
1.4 The Trust shall furnish from time to time for use in connection with
the sale of Trust Interests such information with respect to the Trust and Trust
Interests as ICC may reasonably request. The Trust shall prepare and furnish, at
its own cost and expense, all offering documents to be used by the Exclusive
Placement Agent to offer Trust Interests, including, without limitation, the
Confidential Private Placement Memorandum, the Confidential Statement of
Additional Information, and the Subscription Agreement (collectively, the
"Approved Offering Documents"). The Trust shall also furnish ICC upon request
with: (a) unaudited semiannual statements of the Trust's books and accounts
prepared by the Trust, and (b) from time to time such additional information
regarding the Trust's financial or regulatory condition as ICC may reasonably
request.
1.5 The Trust represents to ICC that all registration statements filed by
the Trust with the Commission under the 1940 Act with respect to Trust Interests
have been prepared in conformity with the requirements of such statute and the
rules and regulations of the Commission thereunder. As used in this Agreement
the term "registration statement" shall mean any registration statement filed
with the Commission, as modified by any amendments thereto that at any time
shall have been filed with the Commission by or on behalf of a Trust. The Trust
represents and warrants to ICC that any registration statement will contain all
statements required to be stated
therein in conformity with both such statute and the rules and regulations of
the Commission; that all statements of fact contained in any registration
statement will be true and correct in all material respects at the time of
filing of such registration statement or amendment thereto; and that no
registration statement will include 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 to a purchaser of Trust Interests. The
Trust may but shall not be obligated to propose from time to time such amendment
to any registration statement as in the light of future developments may, in the
opinion of the Trust's counsel, be necessary or advisable. If a Trust shall not
propose such amendment and/or supplement within fifteen days after receipt by
the Trust of a written request from ICC to do so, ICC may, at its option,
terminate this Agreement. The Trust shall not file any amendment to any
registration statement without giving ICC reasonable notice thereof in advance;
provided, however, that nothing contained in this Agreement shall in any way
limit the Trust's right to file at any time such amendment to any registration
statement as the Trust may deem advisable, such right being in all respects
absolute and unconditional.
1.6 The Trust agrees to indemnify, defend and hold ICC, its several
officers and directors, and any person who controls ICC within the meaning of
Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1934
(the "1934 Act") (for purposes of this paragraph 1.6, collectively, the "Covered
Persons") free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) which any Covered Person may incur under the 1933 Act, the 1934 Act,
the laws or regulations of any U.S. or foreign governmental authority, common
law, or otherwise, but only to the extent that such liability or expense
incurred by a Covered Person resulting from such claims or demands shall arise
out of or be based on (i) any untrue statement of a material fact contained in
Approved Offering Documents or other offering material from time to time
furnished by or on behalf of the Trust ("Offering Material") or (ii) any
omission to state a material fact required to be stated in any Offering Material
or necessary to make the statements in any Offering Material not misleading;
provided, however, that the Trust's agreement to indemnify Covered Persons shall
not be deemed to cover any claims, demands, liabilities or expenses arising out
of any financial and other statements as are furnished in writing to the Trust
by ICC in its capacity as Exclusive Placement Agent for use in the answers to
any items of any registration statement or in any statements made in any
Offering Material, or arising out of or based on any omission or alleged
omission to state a material fact in connection with the giving of such
information required to be stated in such answers or necessary to make the
answers not misleading; and further provided that the Trust's agreement to
indemnify ICC and the Trust's representation and warranties hereinbefore set
forth in paragraph 1.5 shall not be deemed to cover any liability to the Trust
or its investors to which a Covered Person would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of a Covered Person's reckless disregard of its obligations
and duties under this Agreement. The Trust shall be notified of any action
brought against a Covered Person, such notification to be given by letter or by
telegram addressed to the Trust, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000
Attention: Secretary, with a copy to Xxxx Bostelmen, Esq., Xxxxxxxx & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, promptly after the summons or other
first legal process shall have been duly and completely served upon such Covered
Person. The failure to so notify the Trust of any such action shall not relieve
the Trust (i) from any liability except to the extent the Trust shall have been
prejudiced by such failure, or (ii) from any liability that the Trust may have
to the Covered Person against whom such action is brought by reason of any such
untrue or alleged untrue statement, or omission or alleged omission, otherwise
than on account of the Trust's indemnity agreement contained in this paragraph.
The Trust will be entitled to assume the defense of any suit brought to enforce
any such claim, demand or liability, but in such case such defense shall be
conducted by counsel of good standing chosen by the Trust and approved by ICC,
which approval shall not be unreasonably withheld. In the event the Trust elects
to assume the defense in any such suit and retain counsel of good standing
approved by ICC, the defendant or defendants in such suit shall bear the fees
and expenses of any additional counsel retained by any of them; but in case the
Trust does not elect to assume the defense of any such suit, or in case ICC
reasonably does not approve of counsel chosen by the Trust, the Trust will
reimburse the Covered Person named as defendant in such suit, for the fees and
expenses of any counsel retained by ICC or the Covered Persons. The Trust's
indemnification agreement contained in this paragraph and the Trust's
representations and warranties in this Agreement shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
Covered Persons, and shall survive the delivery of any Trust Interests. This
agreement of indemnity will inure exclusively to Covered Persons and their
successors. The Trust agrees to notify ICC promptly of the commencement of any
litigation or proceedings against the Trust or any of its officers or Trustees
in connection with the issue and sale of any Trust Interests.
1.7 ICC agrees to indemnify, defend and hold the Trust, its officers and
trustees, and any person who controls the Trust within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act (for purposes of this paragraph
1.7, collectively, the "Covered Persons") free and harmless from and against any
and all claims, demands, liabilities and expenses (including the costs of
investigating or defending such claims, demands, liabilities and any counsel
fees incurred in connection therewith) that Covered Persons may incur under the
1933 Act, the 1934 Act, common law, or otherwise, but only to the extent that
such liability or expense incurred by a Covered Person resulting from such
claims or demands shall arise out of or be based on (i) any untrue statement of
a material fact contained in information furnished in writing by ICC in its
capacity as Exclusive Placement Agent to the Trust for use in the answers to any
of the items of any registration statement or in any statements in any other
Offering Material, or (ii) any omission to state a material fact in connection
with such information furnished in writing by ICC to the Trust required to be
stated in such answers or necessary to make such information not misleading. ICC
shall be notified of any action brought against a Covered Person, such
notification to be given by letter or telegram addressed to XXX xx Xxx Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxx 00000, Attention: Secretary, promptly after the summons
or other first legal process shall have been duly and completely served upon
such Covered Person. The failure to so notify ICC of any such action shall not
relieve ICC (i) from any liability except to the extent the Trust shall have
been prejudiced by such failure, or (ii) from any liability that ICC may have to
the Covered Person against whom such action is brought by reason of any such
untrue or alleged untrue statement, or omission or alleged omission, otherwise
than on account of ICC's indemnity agreement contained in this paragraph. ICC
will be entitled to assume the defense of any suit brought to enforce any such
claim, demand or liability, but in such case such defense shall be conducted by
counsel of good standing chosen by ICC and approved by the Trust, which approval
shall not be unreasonably withheld. In the event that ICC elects to assume the
defense in any such suit and retain counsel of good standing approved by the
Trust, the defendant or defendants in such suit shall bear the fees and expenses
of any additional counsel retained by any of them; but in case ICC does not
elect to assume the defense of any such suit, or in case the Trust reasonably
does not approve of counsel chosen by ICC, ICC will reimburse the Covered Person
named as defendant in such suit, for the fees and expenses of any counsel
retained by the Trust or the Covered Persons. ICC's indemnification agreement
contained in this paragraph and ICC's representations and warranties in this
Agreement shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of Covered Persons, and shall survive the
delivery of any Trust Interests. This agreement of indemnity will inure
exclusively to Covered Persons and their successors. ICC agrees to notify the
Trust promptly of the commencement of any litigation or proceedings against ICC
or any of its officers or directors in connection with the issue and sale of any
Trust Interests.
1.8 No Trust Interests shall be offered by either ICC or the Trust under
any of the provisions of this Agreement and no orders for the purchase or sale
of Trust Interests hereunder shall be accepted by the Trust if and so long as
the effectiveness of the registration statement or any necessary amendments
thereto shall be suspended under any of the provisions of the 1940 Act;
provided, however, that nothing contained in this paragraph shall in any way
restrict or have an application to or bearing on a Trust's obligation to redeem
Trust Interests from any investor in accordance with the provisions of the
Trust's registration statement or Declaration of Trust, as amended from time to
time. The Trust shall notify ICC promptly of the suspension of its registration
statement or any necessary amendments thereto, such notification to be given by
letter or telecopy addressed to XXX xx Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx
00000, Attention: Secretary.
1.9 The Trust agrees to advise ICC as soon as reasonably practical by a
notice in writing delivered to ICC or its counsel:
(a) of any request by the Commission for amendments to the
registration statement then in effect or for additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement then in effect
or the initiation by service of process on the Trust of any proceeding for
that purpose;
(c) of the happening of any event that makes untrue any statements
of a material fact made in the registration statement then in effect or
that requires the making of a change in such registration statement in
order to make the statements therein not misleading; and
(d) of all action of the Commission with respect to any amendment to
any registration statement that may from time to time be filed with the
Commission.
For purposes of this paragraph 1.9, informal requests by or acts of the
Staff of the Commission shall not be deemed actions of or requests by the
Commission.
1.10 ICC agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trust all records and other
information not otherwise publicly available relative to the Trust and its
respective prior, present or potential investors and not to use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder, except after prior notification to and approval in writing by
the Trust, which approval shall not be unreasonably withheld and may not be
withheld where ICC may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
1.11 [Intentionally left blank]
1.12 Except as set forth in paragraph 1.6 of this Agreement, the Trust
shall not be liable to ICC or any Covered Persons as defined in paragraph 1.6
for any error of judgment or mistake of law or for any loss suffered by ICC in
connection with the matters to which this Agreement relates, except a loss
resulting from the willful misfeasance, bad faith or gross negligence on the
part of a Trust in the performance of its duties or from reckless disregard by a
Trust of its obligations and duties under this Agreement.
1.13 Except as set forth in paragraph 1.7 of this Agreement, ICC shall not
be liable to the Trust or any Covered Persons as defined in paragraph 1.7 for
any error of judgment or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates, except a loss
resulting from the willful misfeasance, bad faith or gross negligence on the
part of ICC in the performance of its duties or from reckless disregard by ICC
of its obligations and duties under this Agreement.
2. Term.
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This Agreement shall become effective on the date first written above and,
unless sooner terminated as provided herein, shall continue until one year from
the date first written above, and thereafter shall continue automatically for
successive annual periods, provided such continuance is specifically approved at
least annually with respect to the Trust by (i) the Trust's Board of Trustees or
(ii) by a vote of a majority (as defined in the 0000 Xxx) of the Trust's
outstanding voting securities, provided that in either event the continuance is
also approved by the majority of the Trust's Trustees who are not interested
persons (as defined in the 0000 Xxx) of the Trust and who have no direct or
indirect financial interest in this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This Agreement is
terminable without penalty, on not less than 60 days' notice, by the Board, by a
vote of a majority (as defined in the 0000 Xxx) of the Trust's outstanding
voting securities, or by ICC. This Agreement will also terminate automatically
in the event of its assignment (as defined in the 1940 Act and the rules
thereunder).
3. Representations and Warranties.
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ICC and the Trust each hereby represents and warrants to the other that it
has all requisite authority to enter into, execute, deliver and perform its
obligations under this Agreement and that, with respect to it, this Agreement is
legal, valid and binding, and enforceable in accordance with its terms.
4. Activities of ICC.
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Except to the extent necessary to perform ICC's obligations hereunder,
nothing herein shall be deemed to limit or restrict ICC's right, or the right of
any of ICC's officers, directors or employees who may also be a trustee, officer
or employee of the Trust, or persons otherwise affiliated persons of the Trust
to engage in any other business or to devote time and attention to the
management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
trust, firm, individual or association.
5. Concerning Applicable Provisions of Law, etc.
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This Agreement shall be subject to all applicable provisions of law,
including the applicable provisions of the 1940 Act and to the extent that any
provisions herein contained conflict with any such applicable provisions of law,
the latter shall control.
The laws of the State of New York shall, except to the extent that any
applicable provisions of Federal law shall be controlling, govern the
construction, validity and effect of this Agreement, without reference to
principles of conflicts of law.
The undersigned officer of the Trust has executed this Agreement not
individually, but as an authorized officer of the Trust's Declaration of Trust,
as amended. Pursuant to the Declaration of Trust, the obligations of this
Agreement are not binding upon any of the Trustees or investors of the Trust
individually, but bind only the trust estate.
If the contract set forth herein is acceptable to you, please so indicate
by executing the enclosed copy of this Agreement and returning the same to the
undersigned, whereupon this Agreement shall constitute a binding contract
between the parties hereto effective at the closing of business on the date
hereof.
6. Miscellaneous
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(b) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(c) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
(d) Section headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(e) Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
(f) The terms "vote of a majority of the outstanding voting interests,"
"interested person," "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the Act to the terms "vote of a majority of the
outstanding voting securities," "interested person," "affiliated person" and
"assignment," respectively.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
Very truly yours,
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx,
Assistant Secretary, on behalf of the
Trust listed on Exhibit A hereto
Accepted:
ICC Distributors, Inc.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President
EXHIBIT A
TO
EXCLUSIVE PLACEMENT AGENT AGREEMENT
Pursuant to the Exclusive Placement Agreement, ICC shall be Exclusive
Placement Agent with respect to the following series of the Deutsche Investors
Portfolios Trust, effective as of the date indicated below:
Name of Trust Date
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Deutsche Investors Portfolios Trust:
Top 50 World Portfolio (U.S. Dollar) December 20, 1999
Top 50 Europe Portfolio (U.S. Dollar) December 20, 1999
Top 50 Asia Portfolio (U.S. Dollar) December 20, 1999
Top 50 US Portfolio (U.S. Dollar) December 20, 1999
Japanese Equity Portfolio (U.S. Dollar) December 20, 1999
European Mid-Cap Portfolio (U.S. Dollar) December 20, 1999
(formerly, Provesta Portfolio)
Amended as of May 1, 2001.
