Exhibit 99(k)(ii)
T H E A L T M A N G R O U P
THE XXXXXX GROUP, INC. 0000 XXXXXX XXXXX XXX
PROXY SOLICITATION XXXXXXXXX, XX 00000
INVESTOR RELATIONS TEL: 000-000-0000
BANKRUPTCY SERVICES FAX: 000-000-0000
April 29, 2004
H&Q Healthcare Investors
00 Xxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx
Dear Xxx:
This will serve as the agreement ("Agreement") between The Xxxxxx Group, Inc.
("The Xxxxxx Group") and H&Q Healthcare Investors, pursuant to which The Xxxxxx
Group will serve H&Q Healthcare Investors as information agent for its rights
offering, currently scheduled for May 2004.
1. SERVICES AND FEES:
As Information Agent, The Xxxxxx Group will perform services related to
providing information to shareholders regarding the offering as well as
providing intelligence reports to H&Q Healthcare Investors on Bank,
Broker and Arbitrageur activity throughout the offering.
a) These services include, but are not limited to:
i) Contact with banks, brokers and intermediaries to
determine the quantity of materials needed,
distribute appropriate quantities of such materials.
ii) Enclose and mail all necessary offering documents to
shareholders offering documents to shareholders to
sell their interests.
iii) Set up a dedicated toll-free number to respond to
inquiries, provide assistance to shareholders and
monitor the response to the offer.
iv) Enclose and mail the offering documents to interested
shareholders and provide periodic reports to the
client as to the results and the status of the rights
offering.
T H E A L T M A N G R O U P
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For an additional fee, if needed, The Xxxxxx Group if requested by the
client will proactively contact registered shareholders and/ or non objecting
beneficial holders (NOBOs) to help promote a high level of participation in the
offer.
2. FEES:
a) The Xxxxxx Group agrees to complete the work described above
for a fee of $5,500 plus reasonable and documented
out-of-pocket expenses.
b) Reasonable and documented out-of-pocket expenses shall be
reimbursed by H&Q Healthcare Investors, and will include such
charges as search notification, postage, messengers and
overnight couriers, other expenses incurred by The Xxxxxx
Group in obtaining or converting depository participant,
shareholder and/or NOBO listings; and reasonable and customary
charges for data processing, supplies, in-house photocopying,
telephone usage, and other similar activities.
c) In addition to the base fee, a $4.75 per telephone call fee
will be charged for every inbound telephone call received with
regards to the clients offer.
d) The additional fee for contacting NOBOs and registered
shareholders, if requested, will include a fee of $4.75 per
shareholder contacted, a $300 set up fee and out of pocket
expenses related to telephone lookups and line charges.
3. BILLING AND PAYMENT:
An invoice for the agreed base fee of $5,500 is attached, and The
Xxxxxx Group requires that the signed contract and this retainer be
received by our office prior to the distribution of material.
Out-of-pocket expenses incurred will be invoiced to H&Q Healthcare
Investors after the rights offering is completed.
Banks, brokers and intermediaries will be directed to send their
invoices directly to H&Q Healthcare Investors for payment. The Xxxxxx
Group will, if requested, assist in reviewing and approving any or all
of these invoices.
4. RECORDS:
Copies of supplier invoices and other back-up material in support of
The Xxxxxx Group's out-of-pocket expenses will be available for review
at the offices of The Xxxxxx Group upon reasonable notice and during
normal business hours.
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5. CONFIDENTIALITY:
The Xxxxxx Group and H&Q Healthcare Investors agree that all books,
records, information and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation or
the carrying out of the Agreement shall remain confidential, and shall
not be voluntarily disclosed to any other person, except as may be
required by law. The Xxxxxx Group shall not disclose or use any
nonpublic information (as that term is defined in SEC Regulation S-P
promulgated under Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999)
relating to the customers of H&Q Healthcare Investors and /or its
affiliates ("Customer Information") except as may be necessary to carry
out the purposes of this Agreement. The Xxxxxx Group shall use best
efforts to safeguard and maintain the confidentiality of such Customer
Information, and to limit access to and usage of such customer
information to those employees, officers, agents, and representatives
of the The Xxxxxx Group who have a need to know the information or as
necessary to provide the services under this Agreement.
6. INDEMNIFICATION:
a) The Xxxxxx Group shall be entitled to rely upon any written
instructions or directions furnished to it by an appropriate
Officer of H&Q Healthcare Investors (President, Vice
President, Secretary, Assistant Secretary, or Treasurer), in
conformity with the provisions of this Agreement. The Xxxxxx
Group shall not be under any duty or obligation to inquire
into the validity or invalidity or authority or lack thereof
of any instruction or direction from an Officer of H&Q
Healthcare Investors which conforms to the applicable
requirements of this Agreement and which The Xxxxxx Group
reasonably believes to be genuine.
b) H&Q Healthcare Investors will indemnify The Xxxxxx Group
against, and hold it harmless from, all liability and expense
which may arise out of or in connection with the services
described in this Agreement or the instructions or directions
furnished to The Xxxxxx Group relating to this Agreement by an
appropriate Officer of H&Q Healthcare Investors, except for
any liability or expense which shall arise out of the
negligence, bad faith or willful misconduct of The Xxxxxx
Group.
c) The Xxxxxx Group shall be responsible for and shall indemnify
and hold H&Q Healthcare Investors harmless from and against
any and all losses, damages, cost, charges, counsel fees,
payments, expenses and liability arising out of or
attributable to The Xxxxxx Group's refusal or failure to
comply with the terms of this Agreement, or which arise out of
The Xxxxxx Group's negligence, bad faith or willful
misconduct.
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At its election, H&Q Healthcare Investors may assume the defense of any
such action. The Xxxxxx Group hereby agrees to advise H&Q Healthcare
Investors of any such liability or claim promptly after receipt of the
notice thereof; provided however, that The Xxxxxx Group's right to
indemnification hereunder shall not be limited by its failure to
promptly advise H&Q Healthcare Investors of any such liability or
claim, except to the extent that H&Q Healthcare Investors is prejudiced
by such failure.
7. TERMINATION:
This agreement shall end upon the date of the H&Q Healthcare Investors
offering, or prior to that upon 30 days' written notice by either party
to the other.
8. GOVERNING LAW:
This agreement will be governed and construed in accordance with the
laws of the State of New York, without regard to principles of
conflicts of law.
9. AMENDMENTS
This Agreement, or any term of this Agreement, may be changed or waived
only by written amendment signed by a duly authorized representative of
each party to this Agreement.
10. ASSIGNMENT
This Agreement shall not be assigned without the prior written consent
of each party to the Agreement.
11. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
12. CAPTIONS
The captions and descriptive headings in this Agreement are for only
the convenience of the parties. They do not in any way define or limit
any of the terms of this Agreement.
13. SEVERABILITY
If any provision of this Agreement shall be held invalid by a court
decision, statute, rule, or otherwise, the remainder of the Agreement
shall not be affected.
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14. SURVIVAL
The provisions of Sections 5, 6, and 8 shall survive any termination,
for any reason, of this Agreement.
If you are in agreement with the above, kindly sign a copy of this agreement in
the space provided for that purpose below and return one copy to us.
Additionally, an invoice for the retainer is attached and The Xxxxxx Group
requires that the retainer be received by us prior to the mailing of the
offering materials.
Sincerely,
THE XXXXXX GROUP, INC.
/s/ Xxxxxxxxx Xxxxx
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Xxxxxxxxx Xxxxx,
Executive Managing Director
AGREED:
H&Q Healthcare Investors
Xxxxxxxxx X. Xxxxxxx
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Print Authorized Name
/s/ Xxxxxxxxx X. Xxxxxxx
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Authorized Signature
Treasurer
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Title
May 25, 2004
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Date
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