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EXHIBIT (k)(4)
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March 10, 1998
The Xxxxx Total Return Fund, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
LETTER OF AGREEMENT
This Letter of Agreement (the "Agreement") sets forth the terms and conditions
under which Xxxxxxxxx & Company Inc. ("Xxxxxxxxx") has been retained by The
Xxxxx Total Return Fund, Inc. ("The Xxxxx Total Return Fund, Inc.") as
Information Agent for its Rights Offering. The term of the Agreement shall be
the term of the Offer.
1. During the term of the Agreement, Xxxxxxxxx will: provide advice and
consultation with respect to the planning and execution of the
Offer; assist in the preparation and placement of newspaper ads;
assist in the distribution of Offer documents to brokers, banks,
nominees, institutional investors, and other shareholders and
investment community accounts; answer collect telephone inquiries
from shareholders and their representatives; and, if requested, call
individuals who are registered holders.
2. The Xxxxx Total Return Fund, Inc. will pay Xxxxxxxxx a fee of
$12,500.00, of which half is payable in advance per the enclosed
invoice and the balance at the expiration of the Offer, plus an
additional fee to be mutually agreed upon if the Offer is extended
more than fifteen days beyond the initial expiration date. If
Xxxxxxxxx is requested to call individuals who are registered
holders of Common Stock or non-objecting beneficial owners (NOBO's)
of The Xxxxx Total Return Fund, Inc., The Xxxxx Total Return Fund,
Inc. will pay Xxxxxxxxx an additional sum computed on the basis of
$4.50 per call. In addition, The Xxxxx Total Return Fund, Inc. will
reimburse Xxxxxxxxx for reasonable costs and expenses incurred by
Xxxxxxxxx in fulfilling the Agreement, including but not limited to:
expenses incurred by Xxxxxxxxx in the preparation and placement of
newspaper ads, including typesetting and space charges; postage and
freight charges incurred by Xxxxxxxxx in the delivery of Offer
documents; printing costs; charges for the production of shareholder
lists (paper, computer cards, etc.), statistical analyses, mailing
labels, or other forms of information requested by The Xxxxx Total
Return Fund, Inc. or its agents and other expenses or disbursements
authorized by The Xxxxx Total Return Fund, Inc. or its agents.
3. If requested, we will check, itemize and pay, on your behalf, from
funds provided by you, the charges of brokers and banks, with the
exception of ADP Proxy Services which will xxxx you directly, for
forwarding Offer material to beneficial owners. To ensure that we
have sufficient funds in your account to pay these bills promptly,
you agree to provide us, at the time we complete the initial
delivery of this material, with a preliminary payment equal to 75%
of the anticipated broker and bank charges for distributing this
material. For this service, you will pay us five dollars and fifty
cents ($5.50) for each broker and bank invoice paid by us. If you
prefer to pay these bills directly, please strike out and initial
this clause before returning the Agreement to us.
4. Xxxxxxxxx hereby agrees not to make any representations not included
in the Offer documents.
5. The Xxxxx Total Return Fund, Inc. agrees to indemnify and hold
Xxxxxxxxx harmless against any loss, damage, expense (including,
without limitation, legal and other related fees and expenses),
liability or claim arising out of Xxxxxxxxx'x fulfillment of the
Agreement (except for any loss, damage, expense, liability or claim
arising out of Xxxxxxxxx'x own negligence or misconduct). At its
election, The Xxxxx Total Return Fund, Inc. may assume the defense
of any such action. Xxxxxxxxx hereby agrees to advise The Xxxxx
Total Return Fund, Inc. of any such liability or claim promptly
after receipt of any notice thereof. The indemnification contained
in this paragraph will survive the term of the Agreement.
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6. Xxxxxxxxx agrees to preserve the confidentiality of all non-public
information provided by The Xxxxx Total Return Fund, Inc. or its
agents for our use in providing services under this Agreement, or
information developed by Xxxxxxxxx based upon such non-public
information.
IF THE ABOVE IS AGREED TO BY YOU, PLEASE SIGN AND RETURN THE ENCLOSED DUPLICATE
OF THIS AGREEMENT TO XXXXXXXXX & COMPANY INC., XXXX XXXXXX XXXXX, XXX XXXX, XXX
XXXX 00000, ATTENTION: XXXXX XXXX, CONTRACT ADMINISTRATOR.
ACCEPTED: Sincerely,
THE XXXXX TOTAL RETURN FUND, INC. XXXXXXXXX & COMPANY INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxx Xx Xxxxxxx
Title: Vice President Title: Senior Managing Director
Date: 3/23/98
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