May 2, 2007
The Swiss Helvetia Fund,
Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Re: Letter of Agreement
Gentlemen:
This Letter of Agreement, including
the Appendix attached hereto (collectively, this “Agreement”), sets forth the
terms and conditions of the engagement of Xxxxxxxxx Inc. (“Xxxxxxxxx”) by The
Swiss Helvetia Fund, Inc. (the “Company”) to act as Information Agent in
connection with its Rights Offer (the “Offer”). The term of the Agreement shall
be the term of the Offer, including any extensions thereof.
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(a) |
Services. Xxxxxxxxx shall perform the services described in the Fees
& Services Schedule attached hereto as Appendix I (collectively, the
“Services”). |
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(b) |
Fees. In consideration of Xxxxxxxxx’x performance of the Services,
the Company shall pay Xxxxxxxxx the amounts, and pursuant to the terms, set
forth on the Fees & Services Schedule attached hereto as Appendix I. |
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(c) |
Expenses. In connection with Xxxxxxxxx’x performance of the
Services, and in addition to the fees and charges discussed in paragraphs (b)
and (d) hereof, the Company agrees that it shall be solely responsible for the
following costs and expenses, and that the Company shall, at Xxxxxxxxx’x
sole discretion, (i) reimburse Xxxxxxxxx for such costs and expenses actually
incurred by Xxxxxxxxx, (ii) pay such costs and expenses directly and/or (iii)
advance sufficient funds to Xxxxxxxxx for payment of such costs and expenses: |
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expenses incidental to the Offer, including postage and freight charges incurred in delivering
Offer materials; |
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expenses incurred by Xxxxxxxxx in working with its agents or other parties involved in the
Offer, including charges for bank threshold lists, data processing, telephone directory
assistance, facsimile transmissions or other forms of electronic communication; |
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expenses incurred by Xxxxxxxxx at the Company’s request or for the Company’s
convenience, including copying expenses, expenses relating to the printing of additional
and/or supplemental material and travel expenses of Xxxxxxxxx’x executives; |
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any other fees and expenses authorized by the Company and resulting from extraordinary
contingencies which arise during the course of the Offer, including fees and expenses for
advertising (including production and posting), media relations, stock watch and
analytical services. |
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(d) |
Custodial Charges. Xxxxxxxxx agrees to check, itemize and pay on the
Company’s behalf the charges of brokers and banks, with the exception of
ADP Proxy Services which will xxxx the Company directly, for forwarding the
Company’s offering material to beneficial owners. The Company agrees to
provide Xxxxxxxxx, prior to the commencement of the initial distribution of
offering materials to such brokers and banks, with a preliminary payment equal
to 75% of Xxxxxxxxx’x good faith estimate of the charges which shall be
assessed by such brokers and banks for two distributions of such materials. The
Company shall pay Xxxxxxxxx an administrative fee of five dollars ($5.00) for
each broker and bank invoice paid by Xxxxxxxxx on the Company’s behalf. If
the Company prefers to pay these bills directly, please strike out and initial
this clause before returning the executed Agreement. |
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(e) |
Compliance with Applicable Laws. The Company and Xxxxxxxxx hereby
represent to one another that each shall use its best efforts to comply with all
applicable laws relating to the Offer, including, without limitation, the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. |
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(f) |
Indemnification. The Company agrees to indemnify and hold harmless
Xxxxxxxxx and its stockholders, officers, directors, employees, agents and
affiliates against any and all claims, costs, damages, liabilities, judgments
and expenses, including the fees, costs and expenses of counsel retained by
Xxxxxxxxx, which result from claims, actions, suits, subpoenas, demands or other
proceedings brought against or involving Xxxxxxxxx which directly relate to or
arise out of Xxxxxxxxx’x performance of the Services (except for costs,
damages, liabilities, judgments or expenses which shall have been determined by
a court of law pursuant to a final and nonappealable judgment to have directly
resulted from Xxxxxxxxx’x xxxxx negligence or intentional misconduct). In
addition, the prevailing party shall be entitled to reasonable attorneys’
fees and court costs in any action between the parties to enforce the provisions
of this Agreement, including the indemnification rights contained in this
paragraph. The indemnity obligations set forth in this paragraph shall survive
the termination of this Agreement. |
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(g) |
Governing Law. This Agreement shall be governed by the substantive laws
of the State of New York without regard to its principles of conflicts of laws,
and shall not be modified in any way, unless pursuant to a written agreement
which has been executed by each of the parties hereto. The parties agree that
any and all disputes, controversies or claims arising out of or relating to this
Agreement (including any breach hereof) shall be subject to the jurisdiction of
the federal and state courts in New York County, New York and the parties hereby
waive any defenses on the grounds of lack of personal jurisdiction of such
courts, improper venue or forum non conveniens. |
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(h) |
Exclusivity. The Company agrees and acknowledges that Xxxxxxxxx shall be
the sole Information Agent retained by the Company in connection with the Offer,
and that the Company shall refrain from engaging any other Information Agent to
render any Services, in a consultative capacity or otherwise, in relation to the
Offer. |
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(i) |
Additional Services. In addition to the Services, the Company may from
time to time request that Xxxxxxxxx provide it with certain additional
consulting or other services. The Company agrees that Xxxxxxxxx’x provision
of such additional services shall be governed by the terms of a separate
agreement to be entered into by the parties at such time or times, and that the
fees charged in connection therewith shall be at Xxxxxxxxx’x then-current
rates. |
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(j) |
Confidentiality. Xxxxxxxxx agrees to preserve the confidentiality of (i)
all material non-public information provided by the Company or its agents for
Xxxxxxxxx’x use in fulfilling its obligations hereunder and (ii) any
information developed by Xxxxxxxxx based upon such material non-public
information (collectively, “Confidential Information”). For purposes
of this Agreement, Confidential Information shall not be deemed to include any
information which (w) is or becomes generally available to the public in
accordance with law other than as a result of a disclosure by Xxxxxxxxx or any
of its officers, directors, employees, agents or affiliates; (x) was available
to Xxxxxxxxx on a nonconfidential basis and in accordance with law prior to its
disclosure to Xxxxxxxxx by the Company; (y) becomes available to Xxxxxxxxx on a
nonconfidential basis and in accordance with law from a person other than the
Company or any of its officers, directors, employees, agents or affiliates who
is not otherwise bound by a confidentiality agreement with the Company or is not
otherwise prohibited from transmitting such information to a third party; or (z)
was independently and lawfully developed by Xxxxxxxxx based on information
described in clauses (w), (x) or (y) of this paragraph. The Company agrees that
all reports, documents and other work product provided to the Company by
Xxxxxxxxx pursuant to the terms of this Agreement are for the exclusive use of
the Company and may not be disclosed to any other person or entity without the
prior written consent of Xxxxxxxxx. The confidentiality obligations set forth in
this paragraph shall survive the termination of this Agreement. |
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(k) |
Entire Agreement; Appendix. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties hereto with respect to the subject matter hereof.
The Appendix to this Agreement shall be deemed to be incorporated herein by
reference as if fully set forth herein. This Agreement shall be binding upon all
successors to the Company (by operation of law or otherwise). |
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If the above is agreed to by you, please execute and return the enclosed
duplicate of this Agreement to Xxxxxxxxx Inc., 00 Xxxxx Xxxxxx –
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx, Contract
Administrator. |
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Sincerely,
XXXXXXXXX, INC.
By:
Title: |
APPENDIX I
FEES & SERVICES
SCHEDULE
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Advice and consultation with respect to setup and progress of Offer |
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Strategic advice relating to the Offer |
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Assistance in preparation of advertisements and news releases |
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Dissemination of Offer documents to bank and broker community |
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Communication with bank and broker community during Offer period |
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Direct telephone communication with retail (i.e., registered and
NOBO shareholders) |
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$5.00 per call (inbound and outbound) |
NOTE: The foregoing fees are
exclusive of reimbursable expenses and custodial charges as described in paragraphs
(c) and (d) of this Agreement. In addition, the Company will be charged a fee of $1,000 if
the Offer is extended for any reason.
FEE PAYMENT INSTRUCTIONS
The Company shall pay Xxxxxxxxx as follows:
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Upon execution of this Agreement, the Company shall pay Xxxxxxxxx
$12,500 which amount is in consideration of Xxxxxxxxx'x Commitment to represent
the Company and is non-refundable;
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If applicable, immediately prior to the commencement of the
mailing, the Company shall advance to Xxxxxxxxx a portion of anticipated
custodial charges; and
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Upon completion of the Offer, the Company shall pay Xxxxxxxxx the
sum of (i) any variable fees for Additional Services (e.g., telephone
calls) which shall have accrued over the course of the Offer, (ii) the Success
Fee, if earned and (iii) all reimbursable expenses.
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Xxxxxxxxx will send the Company an invoice for each of the
foregoing payments.
