EXHIBIT (K)(ii)
ADDITIONAL COMPENSATION AGREEMENT
ADDITIONAL COMPENSATION AGREEMENT (the "Agreement"), dated as of
September 28, 2004, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and Deutsche Investment Management Americas
Inc. ("DeIM").
WHEREAS, ▇▇▇▇▇▇▇ Global Commodities Stock Fund, Inc. (including any
successor by merger or otherwise, 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 ("common
shares") are registered under the Securities Act of 1933, as amended; and
WHEREAS, DeIM is the investment manager and the administrator of the
Fund;
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as lead underwriter in an offering of
the Fund's common shares;
WHEREAS, DeIM desires to provide additional compensation to ▇▇▇▇▇▇▇
▇▇▇▇▇ for acting as lead underwriter in an offering of the Fund's common shares;
and
WHEREAS, DeIM desires to retain ▇▇▇▇▇▇▇ ▇▇▇▇▇ to provide after-market
support services designed to maintain the visibility of the Fund on an ongoing
basis, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ is willing to render such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. (a) DeIM hereby employs ▇▇▇▇▇▇▇ ▇▇▇▇▇, for the period and on the terms
and conditions set forth herein, to provide the following services at
the reasonable request of DeIM:
(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 DeIM
in connection therewith; and
(3) information to and consult with DeIM with respect to
applicable strategies designed to address market
value discounts, if any.
(b) At the request of ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall limit or cease any
action or service provided hereunder to the extent and for the
time period requested by DeIM; provided, however, that pending
termination of this Agreement as provided for in Section 6
hereof, any such limitation or cessation shall not relieve
DeIM of its payment obligations pursuant to Section 2 hereof.
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇ will promptly notify DeIM if it learns of any
material inaccuracy or misstatement in, or material omission
from, any written information provided by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to
DeIM in connection with the performance of services by ▇▇▇▇▇▇▇
▇▇▇▇▇ under this Agreement.
2. DeIM shall pay ▇▇▇▇▇▇▇ ▇▇▇▇▇ a fee computed monthly and payable
quarterly in arrears commencing September 28, 2004 at an annualized
rate of 0.15% of the Fund's Managed Assets
(as defined below) for a term as described in Section 6 hereof;
provided that the total amount of the fee hereunder shall not exceed
____% of the total price to the public of the Fund's common shares sold
pursuant to the prospectus dated September 28, 2004 (including all
Initial Securities and Option Securities as such terms are described in
the Purchase Agreement, dated September 23, 2004, by and among the
Fund, DeIM and each of the Underwriters named therein (the "Purchase
Agreement"). The sum total of this fee, the fee payable to ▇.▇. ▇▇▇▇▇▇▇
& Sons, Inc. ("▇.▇. ▇▇▇▇▇▇▇") pursuant to the Corporate Finance
Services and Consulting Agreement, dated as of September 28, 2004,
between ▇.▇. ▇▇▇▇▇▇▇ and ▇▇▇▇, the fee payable to UBS Securities LLC
("UBS") pursuant to the Additional Compensation Agreement, dated as of
September 28, 2004, between UBS and DeIM, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
included in the preceding sentence is referred to in this Agreement as
the "▇▇▇▇▇▇▇ ▇▇▇▇▇ Maximum Additional Compensation Amount." ▇▇▇▇▇▇▇
▇▇▇▇▇ hereby undertakes to notify DeIM when the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Maximum
Additional Compensation Amount has been paid by DeIM. "Managed Assets"
is defined as the net asset value of common shares plus the liquidation
preference of any Fund preferred stock plus the principal amount of any
borrowings. All quarterly fees payable hereunder shall be paid to
▇▇▇▇▇▇▇ ▇▇▇▇▇ within 15 days following the end of each calendar
quarter.
3. DeIM 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
Compensation Amount described in paragraph 2 above.
4. DeIM acknowledges that the services of ▇▇▇▇▇▇▇ ▇▇▇▇▇ provided for
hereunder do not include any advice as to the value of securities or
regarding the advisability of purchasing or selling any securities for
the Fund's portfolio. No provision of this Agreement shall be
considered as creating, nor shall any provision create, any obligation
on the part of ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ is not hereby agreeing,
to: (i) furnish any advice or make any recommendations regarding the
purchase or sale of portfolio securities or (ii) render any opinions,
valuations or recommendations of any kind or to perform any such
similar services in connection with providing the services described in
Section 1 hereof.
5. Nothing herein shall be construed as prohibiting ▇▇▇▇▇▇▇ ▇▇▇▇▇ or its
affiliates from providing similar or other services to any other
clients (including other registered investment companies or other
investment managers), so long as ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ services to DeIM are
not impaired thereby.
6. The term of this Agreement shall commence upon the date referred to
above and shall be in effect only so long as DeIM 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 DeIM to
▇▇▇▇▇▇▇ ▇▇▇▇▇ of the Maximum Additional ▇▇▇▇▇▇▇ ▇▇▇▇▇ Compensation
Amount, (b) the payment by DeIM 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 DeIM shall terminate.
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7. DeIM will ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ with such information as ▇▇▇▇▇▇▇ ▇▇▇▇▇
reasonably believes appropriate to its assignment hereunder (all such
information so furnished being the "Information"). DeIM recognizes and
confirms that ▇▇▇▇▇▇▇ ▇▇▇▇▇ (a) will use and rely primarily on the
Information and on information available from generally recognized
public sources in performing the services contemplated by this
Agreement without having independently verified the same and (b) except
as provided in Section 1(c) of this Agreement, does not assume
responsibility for the accuracy or completeness of the Information and
such other information. To the best of DeIM's knowledge, the
Information to be furnished by DeIM 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. DeIM will
promptly notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ if it learns of any material inaccuracy
or misstatement in, or material omission from, any Information
delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇.
8. DeIM agrees that ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have no liability to DeIM or the
Fund for any act or omission to act by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in the course of
its performance under this Agreement, in the absence of gross
negligence or willful misconduct on the part of ▇▇▇▇▇▇▇ ▇▇▇▇▇. ▇▇▇▇
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 DeIM and ▇▇▇▇▇▇▇ ▇▇▇▇▇
consent to the jurisdiction of such courts and personal service with
respect thereto. Each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ 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.
DeIM agrees that a final judgment in any proceeding or counterclaim
brought in any such court shall be conclusive and binding upon DeIM and
may be enforced in any other courts to the jurisdiction of which DeIM
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 DeIM and ▇▇▇▇▇▇▇ ▇▇▇▇▇. In addition, nothing
in this Agreement shall be construed to constitute ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the
agent or employee of DeIM or DeIM as the agent or employee of ▇▇▇▇▇▇▇
▇▇▇▇▇ and neither of the parties hereto shall make any representation
to the contrary.
13. This Agreement (including the attached Indemnification 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
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otherwise modified or waived except by an instrument in writing signed
by both ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇.
14. All notices required or permitted to be sent under this Agreement shall
be sent, if to DeIM:
Deutsche Investment Management Americas Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
or if to ▇▇▇▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial Center
New York, New York 10080
Attention: ▇▇▇ ▇▇▇
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.
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.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Additional Compensation Agreement as of the date first above written.
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By: _____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: _____________________________
Name:
Title:
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. INDEMNIFICATION AGREEMENT
September 28, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with the engagement of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") to advise and
assist the undersigned (together with its affiliates and subsidiaries, referred
to as the "Company") with the matters set forth in the Agreement dated September
28, 2004 between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Agreement"), in the event
that ▇▇▇▇▇▇▇ ▇▇▇▇▇ becomes involved in any capacity in any claim, suit, action,
proceeding, investigation or inquiry (including, without limitation, any
shareholder or derivative action or arbitration proceeding) (collectively, a
"Proceeding") in connection with any matter in any way relating to or referred
to in the Agreement or arising out of the matters contemplated by the Agreement,
the Company agrees to indemnify, defend and hold ▇▇▇▇▇▇▇ ▇▇▇▇▇ harmless to the
fullest extent permitted by law, from and against any losses, claims, damages,
liabilities and expenses in connection with any matter in any way relating to or
referred to in the Agreement or arising out of the matters contemplated by the
Agreement, except to the extent that it shall be determined by a court of
competent jurisdiction in a judgment that has become final in that it is no
longer subject to appeal or other review, that such losses, claims, damages,
liabilities and expenses resulted solely from the gross negligence or willful
misconduct of ▇▇▇▇▇▇▇ ▇▇▇▇▇. In addition, in the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇
becomes involved in any capacity in any Proceeding in connection with any matter
in any way relating to or referred to in the Agreement or arising out of the
matters contemplated by the Agreement, the Company will reimburse ▇▇▇▇▇▇▇ ▇▇▇▇▇
for its legal and other expenses (including the cost of any investigation and
preparation) as such expenses are incurred by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in connection
therewith. If such indemnification were not to be available for any reason, the
Company agrees to contribute to the losses, claims, damages, liabilities and
expenses involved (i) in the proportion appropriate to reflect the relative
benefits received or sought to be received by the Company and its stockholders
and affiliates and other constituencies, on the one hand, and ▇▇▇▇▇▇▇ ▇▇▇▇▇, on
the other hand, in the matters contemplated by the Agreement or (ii) if (but
only if and to the extent) the allocation provided for in clause (i) is for any
reason held unenforceable, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of the Company and its stockholders and affiliates and other constituencies, on
the one hand, and the party entitled to contribution, on the other hand, as well
as any other relevant equitable considerations. The Company agrees that for the
purposes of this paragraph the relative benefits received, or sought to be
received, by the Company and its stockholders and affiliates, on the one hand,
and the party entitled to contribution, on the other hand, of a transaction as
contemplated shall be deemed to be in the same proportion that the total value
received or paid or contemplated to be received or paid by the Company or its
stockholders or affiliates and other constituencies, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for
which ▇▇▇▇▇▇▇ ▇▇▇▇▇ has been retained to perform financial services bears to the
fees paid to ▇▇▇▇▇▇▇ ▇▇▇▇▇ under the Agreement; provided, that in no event shall
the Company contribute less than the amount necessary to assure that ▇▇▇▇▇▇▇
▇▇▇▇▇ is not liable for losses, claims, damages, liabilities and expenses in
excess of the amount of fees actually received by ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to the
Agreement. Relative fault shall be determined by reference to, among other
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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 ▇▇▇▇▇▇▇
▇▇▇▇▇, on the other hand. The Company will not settle any Proceeding in respect
of which indemnity may be sought hereunder, whether or not ▇▇▇▇▇▇▇ ▇▇▇▇▇ is an
actual or potential party to such Proceeding, without ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ prior
written consent. For purposes of this Indemnification Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, any of its affiliates, each other person, if any, controlling
▇▇▇▇▇▇▇ ▇▇▇▇▇ or any of its affiliates, their respective officers, current and
former directors, employees and agents, and the successors and assigns of all of
the foregoing persons. The foregoing indemnity and contribution agreement shall
be in addition to any rights that any indemnified party may have at common law
or otherwise.
The Company agrees that neither ▇▇▇▇▇▇▇ ▇▇▇▇▇ nor any of its
affiliates, directors, agents, employees or controlling persons shall have any
liability to the Company or any person asserting claims on behalf of or in right
of the Company in connection with or as a result of either ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇
engagement under the Agreement or any matter referred to in the Agreement,
including, without limitation, related services and activities prior to the date
of the Agreement, except to the extent that it shall be determined by a court of
competent jurisdiction in a judgment that has become final in that it is no
longer subject to appeal or other review that any losses, claims, damages,
liabilities or expenses incurred by the Company resulted solely from the gross
negligence or willful misconduct of ▇▇▇▇▇▇▇ ▇▇▇▇▇ in performing the services
that are the subject of the Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE
OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW,
NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE
COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH
COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS,
AND THE COMPANY AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ CONSENT TO THE JURISDICTION OF SUCH COURTS AND
PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY HEREBY CONSENTS TO PERSONAL
JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING OUT OF
OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY ANY THIRD PARTY AGAINST
▇▇▇▇▇▇▇ ▇▇▇▇▇ OR ANY INDEMNIFIED PARTY. EACH OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ AND THE COMPANY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR CLAIM
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH
COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED IN
ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE SUBJECT,
BY SUIT UPON SUCH JUDGMENT.
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The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ engagement. This
Indemnification Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
Very truly yours,
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By: ______________________
Name:
Title:
Accepted and agreed to as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By ______________________
Name:
Title:
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