EXHIBIT (K)(iii)
CORPORATE FINANCE SERVICES AND CONSULTING AGREEMENT
This CORPORATE FINANCE SERVICES AND CONSULTING AGREEMENT (the
"Agreement"), dated as of ______________ 2004, between X.X. Xxxxxxx & Sons, Inc.
("X.X. Xxxxxxx") and Deutsche Investment Management Americas Inc. (the
"Advisor").
WHEREAS, Xxxxxxx Global Commodities Stock Fund, Inc. (the "Fund") is a
non-diversified, closed-end management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and its shares of
common stock, par value $0.01 per share (the "Common Shares"), are registered
under the Securities Act of 1933, as amended;
WHEREAS, the Fund has made a public offering of its Common Shares (the
"Offering");
WHEREAS, the Advisor is the investment manager and administrator of the
Fund;
WHEREAS, the Advisor desires to retain X.X. Xxxxxxx, who acted as co-
lead managing underwriter of the Offering, to provide certain corporate finance
and consulting services to the Advisor and to the Fund on an ongoing basis, and
X.X. Xxxxxxx is willing to render such services; and
WHEREAS, the Advisor desires to provide compensation to X.X. Xxxxxxx
for providing such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. (a) The Advisor hereby employs X.X. Xxxxxxx, for the period
and on the terms and conditions set forth herein, to provide
the following services: (i) provide 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 the
Advisor in connection therewith; (ii) at the request of the
Advisor, provide certain economic research and statistical
information and reports, if reasonably obtainable, on behalf
of the Advisor or the Fund and consult with representatives of
the Advisor or the Fund, and/or the Directors of the Fund in
connection therewith, which information and reports shall
include: (a) statistical and financial market information with
respect to the Fund's market performance; and (b) comparative
information regarding the Fund and other closed-end management
investment companies with respect to (x) the net asset value
of their respective shares (as made publicly available by the
Fund and such investment companies), (y) the respective market
performance of the Fund and such other companies, and (z)
other relevant performance indicators; and (iii) provide the
Advisor with such other services in connection with the Common
Shares relating to the trading price and market price thereof
upon which the Advisor and X.X. Xxxxxxx shall, from time to
time, agree, including after-market services designed to
maintain the visibility of the Fund in the market.
(b) At the request of the Advisor, X.X. Xxxxxxx shall limit or
cease any action or service provided hereunder to the extent
and for the time period requested by the Advisor; provided,
however, that pending termination of this Agreement as
provided for in Section 7 hereof, any such limitation or
cessation shall not relieve the Advisor of its payment
obligations pursuant to Section 2 hereof.
(c) X.X. Xxxxxxx will promptly notify the Advisor in writing if it
learns of any material inaccuracy or misstatement in, or
material omission from, any written information provided by
X.X. Xxxxxxx to the Advisor in connection with the performance
of services by X.X. Xxxxxxx under this Agreement. X.X. Xxxxxxx
agrees that in performing its services under this Agreement,
it shall comply in all material respects with all applicable
laws, rules and regulations.
2. The Advisor shall pay to X.X. Xxxxxxx a fee payable quarterly in
arrears commencing on the date hereon at an annualized rate of 0.15% of
the Fund's Managed Assets (as such term is defined in the Fund's
Prospectus relating to the Offering) for a term as described in Section
7 hereof. All quarterly fees payable hereunder shall be paid to X.X.
Xxxxxxx within 15 days following the end of each quarter. Such fee
payments shall be subject to the sales charge limits of the National
Association of Securities Dealer, Inc. (the "NASD"), and shall
accordingly not exceed _______% of the aggregate offering price of the
Common Shares in the Offering (the "XX Xxxxxxx Maximum Fee Amount").
The sum total of the XX Xxxxxxx Maximum Fee Amount, the fee payable to
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") pursuant to the Additional Compensation Agreement,
dated as of ______ __, 2004, between Xxxxxxx Xxxxx and the Adviser,
[any fees payable to other qualifying underwriters,] plus the amount of
the expense reimbursement of $[ ] per common share payable by the Fund
to the underwriters pursuant to the Purchase Agreement, and the amount
of any other fees or reimbursements paid by the Fund to the
underwriters pursuant to the Purchase Agreement, but not including the
sales load, shall not exceed 4.5% of the total price to the public of
the Fund's common shares sold pursuant to the Prospectus (the "Maximum
Additional Compensation Amount"). The sum total of all fees paid to XX
Xxxxxxx included in the preceding sentence is referred to in this
Agreement as the "XX Xxxxxxx Maximum Additional Compensation Amount."
X.X. Xxxxxxx hereby undertakes to notify NB Management when the XX
Xxxxxxx Maximum Additional Compensation Amount has been paid by NB
Management.
3. The Advisor 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 XX Xxxxxxx Maximum Fee Amount described in
paragraph 2 above.
4. The Advisor acknowledges that the services of X.X. Xxxxxxx provided for
hereunder do not include any advice as to the value of securities or
regarding the advisability of purchasing or selling any securities, in
each case 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 X.X. Xxxxxxx, and X.X. Xxxxxxx is not
agreeing, to: (i) furnish any advice or make any recommendations
regarding the purchase or sale of portfolio securities or (ii) render
any opinions, valuations of portfolio securities or
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recommendations of any kind in connection with providing the services
described in Section 1 hereof, to the extent that any such services
would constitute investment advisory or investment banking services, it
being understood between the parties hereto that any such investment
advisory or investment banking services if, and to the extent, agreed
to be performed by X.X. Xxxxxxx, shall be the subject of a separate
agreement with the Advisor.
5. Nothing herein shall be construed as prohibiting X.X. Xxxxxxx or any of
its respective affiliates from providing similar or other services to
any other clients (including other registered investment companies or
other investment advisers), so long as X.X. Xxxxxxx'x services to the
Advisor are not impaired thereby. Neither this Agreement nor the
performance of the services contemplated hereunder shall be considered
to constitute a partnership, association or joint venture between X.X.
Xxxxxxx and the Advisor. In addition, nothing in this Agreement shall
be construed to constitute X.X. Xxxxxxx as the agent or employee of the
Advisor or the Advisor as the agent or employee of X.X. Xxxxxxx, and
neither party shall make any representation to the contrary. It is
understood that X.X. Xxxxxxx is being engaged hereunder solely to
provide the services described above to the Advisor and that X.X.
Xxxxxxx is not acting as an agent or fiduciary of, and X.X. Xxxxxxx
shall not have any duties or liability to the current or future
shareholders of the Fund or any other third party in connection with
its engagement hereunder, all of which are hereby expressly waived to
the extent the Advisor has the authority to waive such duties and
liabilities.
6. The Advisor will furnish X.X. Xxxxxxx with such information as X.X.
Xxxxxxx reasonably believes appropriate to the performance of its
obligations hereunder (all such information so furnished being the
"Information"). The Advisor recognizes and confirms that X.X. Xxxxxxx
(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) except as set forth in does not assume
responsibility for the accuracy or completeness of the Information and
such other information. To the best of the Advisor's knowledge, the
Information to be furnished by the Advisor 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. The Advisor
will promptly notify X.X. Xxxxxxx if it learns of any material
inaccuracy or misstatement in, or material omission from, any
Information delivered to such party.
7. The term of this Agreement shall commence upon the date referred to
above and shall be in effect only so long as the Adviser acts as the
investment manager to the Fund pursuant to the Management Agreement (as
such term is defined in the Purchase Agreement) or other subsequent
advisory agreement; provided, however, that this Agreement shall
terminate on the earliest to occur of (a) the payment by the Adviser to
XX Xxxxxxx of the XX Xxxxxxx Maximum Additional Compensation Amount,
(b) the payment by the Adviser of the Maximum Additional Compensation
Amount, (c) the dissolution and winding up of the Fund and (d) the date
on which the Management Agreement or other subsequent advisory
agreement between the Fund and the Adviser shall terminate.
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8. The Advisor agrees that X.X. Xxxxxxx shall not have any liability to
the Advisor or the Fund for any act or omission to act by X.X. Xxxxxxx
in the course of its performance under this Agreement, in the absence
of gross negligence or willful misconduct on the part of X.X. Xxxxxxx.
The Advisor agrees that it shall provide indemnification to X.X.
Xxxxxxx as set forth in the Indemnification Agreement appended hereto.
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 the Advisor and X.X. Xxxxxxx
consent to the jurisdiction of such courts and personal service with
respect thereto. Each of the Advisor and X.X. Xxxxxxx 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.
Each of the Advisor and X.X. Xxxxxxx agrees that a final judgment in
any proceeding or counterclaim brought in any such court shall be
conclusive and binding upon such party and may be enforced in any other
courts to the jurisdiction of which such party 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. Neither this Agreement nor the performance of the services contemplated
hereunder shall be considered to constitute a partnership, association
or joint venture between the Adviser and XX Xxxxxxx. In addition,
nothing in this Agreement shall be construed to constitute XX Xxxxxxx
as the agent or employee of the Adviser or the Adviser as the agent or
employee of XX Xxxxxxx and neither of the parties hereto shall make any
representation to the contrary.
13. This Agreement embodies the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof 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 the Advisor and X.X. Xxxxxxx.
14. All notices required or permitted to be sent under this Agreement shall
be sent, if to the Advisor:
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Attention: __________________
or if to X.X. Xxxxxxx:
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Attention: Investment Banking -- Corporate Finance
Any notice shall be deemed to be given or received on the third day
after deposit in the U.S. mail with certified postage prepaid or when
actually received, whether by hand, express delivery service or
facsimile transmission, whichever is earlier.
15. 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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Corporate Finance Services and Consulting Agreement as of the date
first above written.
________________________________ X.X. XXXXXXX & SONS, INC.
By: ____________________________ By: _____________________________
Name: Name: Xxxxxxx X. Xxxx
Title: Title: Managing Director
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INDEMNIFICATION AGREEMENT
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
In connection with the engagement of X.X. Xxxxxxx & Sons, Inc.
("X.X. Xxxxxxx") to provide services to the undersigned (together with its
affiliates and subsidiaries, referred to as the "Company") in connection with
the matters set forth in the Corporate Finance Services and Consulting Agreement
dated April 27, 2004 (the "Agreement"), between the Company and X.X. Xxxxxxx, in
the event that X.X. Xxxxxxx 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,
including, without limitation, related services and activities prior to the date
of the Agreement, the Company agrees to indemnify, defend and hold X.X. Xxxxxxx
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, 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
such losses, claims, damages, liabilities and expenses resulted from the gross
negligence or willful misconduct of X.X. Xxxxxxx. In addition, in the event that
X.X. Xxxxxxx 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, including, without
limitation, related services and activities prior to the date of the Agreement,
the Company will reimburse X.X. Xxxxxxx for its legal and other expenses
(including the cost of any investigation and preparation) as such expenses are
reasonably incurred by X.X. Xxxxxxx 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 X.X. Xxxxxxx, on the other hand, in
the matters contemplated by the Agreement or (ii) if (but only if and to the
extent that) 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
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result of or in connection with the transaction (whether or not consummated) for
which X.X. Xxxxxxx has been retained to perform services bears to the fees paid
to X.X. Xxxxxxx under the Agreement; provided, that in no event shall the
Company contribute less than the amount necessary to assure that X.X. Xxxxxxx is
not liable for losses, claims, damages, liabilities and expenses in excess of
the amount of fees actually received by X.X. Xxxxxxx pursuant to the Agreement.
Relative fault shall be determined by reference to, among other things, whether
any alleged untrue statement or omission or any other alleged conduct relates to
information provided by the Company or other conduct by the Company (or its
employees or other agents), on the one hand, or by X.X. Xxxxxxx, on the other
hand. The Company shall not be liable under this Indemnification Agreement to
X.X. Xxxxxxx regarding any settlement or compromise or consent to the entry of
any judgment with respect to any Proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the Company is an actual
or potential party to such Proceeding) unless such settlement, compromise or
judgment is consented to by the Company. The Company shall not, without the
prior written consent of X.X. Xxxxxxx, settle or compromise or consent to the
entry of any judgment with respect to any Proceeding in respect of which
indemnification or contribution could be sought under this Indemnification
Agreement (whether or not X.X. Xxxxxxx is an actual or potential party thereto),
unless such settlement, compromise or consent (i) includes an unconditional
release of X.X. Xxxxxxx from all liability arising out of such Proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of X.X. Xxxxxxx. For purposes of this
Indemnification Agreement, X.X. Xxxxxxx shall include any of its affiliates,
each other person, if any, controlling X.X. Xxxxxxx 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 X.X. Xxxxxxx 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 X.X. Xxxxxxx'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 from the gross
negligence or willful misconduct of X.X. Xxxxxxx in performing the services that
are the subject of the Agreement.
Notwithstanding any provision contained herein, in no event shall
X.X. Xxxxxxx be entitled to indemnification by the Company hereunder from and
against any losses, claims, damages, liabilities or expenses in respect of which
indemnity may be sought under Section 9 of the Underwriting Agreement.
For clarification, the parties to this Indemnification Agreement
agree that the term "affiliate" as used in the definition of "Company" herein
does not include any registered investment company for which _______________
serves as investment adviser.
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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 X.X. XXXXXXX 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 X.X. XXXXXXX OR ANY INDEMNIFIED PARTY. X.X. XXXXXXX AND THE
COMPANY WAIVE 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 X.X. Xxxxxxx'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,
--------------------------
By: _______________________
Name:
Title:
Accepted and agreed to as of the date first above written:
X.X. XXXXXXX & SONS, INC.
By: _______________________
Name: Xxxxxxx X. Xxxx
Title: Managing Director
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