FORM OF ADDITIONAL COMPENSATION AGREEMENT
ADDITIONAL COMPENSATION AGREEMENT (the "Agreement"), dated as of [o],
2005, between Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and Evergreen Investment Management Company, LLC
("Evergreen IMC").
WHEREAS, Evergreen International Balanced Income Fund (including any
successor by merger or otherwise, the "Fund") is a newly organized, diversified,
closed-end management investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), and its common shares of beneficial
interest (the "Common Shares") are registered under the Securities Act of 1933,
as amended;
WHEREAS, Evergreen IMC is the investment adviser of the Fund;
WHEREAS, Xxxxxxx Xxxxx is acting as lead underwriter in an offering of the
Fund's Common Shares;
WHEREAS, Evergreen IMC desires to provide additional compensation to
Xxxxxxx Xxxxx for acting as lead underwriter in an offering of the Fund's Common
Shares; and
WHEREAS, Evergreen IMC desires to retain Xxxxxxx Xxxxx to provide
after-market support services designed to maintain the visibility of the Fund on
an ongoing basis, and Xxxxxxx Xxxxx 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) Evergreen IMC hereby employs Xxxxxxx Xxxxx, for the period and on
the terms and conditions set forth herein, to provide the following
services at the reasonable request of Evergreen IMC:
(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 Evergreen IMC in
connection therewith; and
(3) information to and consult with Evergreen IMC with
respect to applicable strategies designed to address
market value discounts, if any.
(b) At the request of Evergreen IMC, Xxxxxxx Xxxxx shall limit or cease
any action or service provided hereunder to the extent and for the
time period requested by Evergreen IMC; provided, however, that
pending termination of this Agreement as provided for in Section 6
hereof, any such limitation or cessation shall not relieve Evergreen
IMC of its payment obligations pursuant to Section 2 hereof.
(c) Xxxxxxx Xxxxx will promptly notify Evergreen IMC, 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 Xxxxxxx Xxxxx to Evergreen
IMC in connection with the performance of services by Xxxxxxx Xxxxx
under this Agreement.
2. Evergreen IMC shall pay Xxxxxxx Xxxxx a fee computed weekly and payable
quarterly in arrears commencing [o] at an annualized rate of 0.15% of the
Fund's Total Assets (as defined in the Prospectus dated [o], 2005 (the
"Prospectus")) for a term as described in Section 6 hereof; provided that
the total amount of the fee hereunder, shall not exceed [o]% 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 [o], 2005, by and among the
Fund, Evergreen IMC, Analytic Investors, Inc. and each of the Underwriters
named therein (the "Purchase Agreement"). The sum total of this fee, [the
additional compensation payments to [o],] plus the amount of the expense
reimbursement of $0.00667 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 Xxxxxxx Xxxxx within 15
days following the end of each calendar quarter.
3. Evergreen IMC 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. Evergreen IMC acknowledges that the services of Xxxxxxx Xxxxx 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
Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx'x services to Evergreen IMC 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 Evergreen IMC acts as the investment
adviser to the Fund pursuant to the Advisory Agreement (as such term is
defined in the Purchase Agreement) or other subsequent advisory agreement.
7. Evergreen IMC will xxxxxxx Xxxxxxx Xxxxx with such information as Xxxxxxx
Xxxxx believes appropriate to its assignment hereunder (all such
information so furnished being the "Information"). Evergreen IMC
recognizes and confirms that Xxxxxxx Xxxxx (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 Evergreen IMC's knowledge, the
Information to be furnished by Evergreen IMC 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. Evergreen IMC will
promptly notify Xxxxxxx Xxxxx if it learns of any material inaccuracy or
misstatement in, or material omission from, any Information delivered to
Xxxxxxx Xxxxx.
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8. Evergreen IMC agrees that Xxxxxxx Xxxxx shall have no liability to
Evergreen IMC or the Fund for any act or omission to act by Xxxxxxx Xxxxx
in the course of its performance under this Agreement, in the absence of
gross negligence or willful misconduct on the part of Xxxxxxx Xxxxx.
Evergreen IMC 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.
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 Evergreen IMC and Xxxxxxx Xxxxx consent
to the jurisdiction of such courts and personal service with respect
thereto. Each of Xxxxxxx Xxxxx and Evergreen IMC 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. Evergreen IMC
agrees that a final judgment in any proceeding or counterclaim brought in
any such court shall be conclusive and binding upon Evergreen IMC and may
be enforced in any other courts to the jurisdiction of which Evergreen IMC
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 Xxxxxxx Xxxxx and Evergreen IMC.
13. All notices required or permitted to be sent under this Agreement shall be
sent, if to Evergreen IMC:
Evergreen Investment Management Company, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: [o]
or if to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxx
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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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Additional Compensation Agreement as of the date first above written.
EVERGREEN INVESTMENT MANAGEMENT XXXXXXX XXXXX & CO.
COMPANY, LLC XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: ___________________________ By: _____________________________________
Name: Name:
Title: Title:
Xxxxxxx Xxxxx & Co. Indemnification Agreement
[o], 2005
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the engagement of Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") to advise and
assist the undersigned (together with its affiliates and subsidiaries, referred
to as the "Company") with the matters set forth in the Additional Compensation
Agreement dated [o], 2005 between the Company and Xxxxxxx Xxxxx (the
"Agreement"), in the event that Xxxxxxx Xxxxx 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
Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx. In addition, in
the event that Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx for its legal and other expenses (including
the cost of any investigation and preparation) as such expenses are incurred by
Xxxxxxx Xxxxx 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 shareholders and affiliates and other constituencies, on
the one hand, and Xxxxxxx Xxxxx, 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 shareholders
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
shareholders 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 shareholders 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 Xxxxxxx
Xxxxx has been retained to perform financial services bears to the fees paid to
Xxxxxxx Xxxxx under the Agreement; provided, that in no event shall the Company
contribute less than the amount necessary to assure that Xxxxxxx Xxxxx is not
liable for losses, claims, damages, liabilities and expenses in excess of the
amount of fees actually received by Xxxxxxx Xxxxx pursuant to the Agreement.
Relative fault shall be determined by reference to,
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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 Xxxxxxx Xxxxx, on the other hand. The Company will not settle any Proceeding
in respect of which indemnity may be sought hereunder, whether or not Xxxxxxx
Xxxxx is an actual or potential party to such Proceeding, without Xxxxxxx
Xxxxx'x prior written consent. For purposes of this Indemnification Agreement,
Xxxxxxx Xxxxx shall include Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, any of its affiliates, each other person, if any,
controlling Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx'x
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 Xxxxxxx Xxxxx 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 XXXXXXX XXXXX 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 XXXXXXX XXXXX OR ANY INDEMNIFIED PARTY. EACH OF XXXXXXX
XXXXX 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 Xxxxxxx Xxxxx'x 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,
EVERGREEN INVESTMENT MANAGEMENT
COMPANY, LLC
By: ____________________________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: ________________________________
Name:
Title:
