August 2, 2001
Liberty All-Star Growth Fund, Inc.
One Financial Center
Boston, MA 02111
RE: INFORMATION AGENT
The following sets forth the agreement (the "Agreement") between Liberty
All-Star Growth Fund, Inc. (the "Client"), and Xxxxxxxxx Shareholder - New
Jersey ("GS"), a Delaware corporation. In accordance with the terms and
conditions of the Agreement, the Client hereby agrees to retain GS to perform
certain services as set forth below ("Services"). The terms and conditions are
as follows:
RETAINER AGREEMENT
TERMS AND CONDITIONS
THIS AGREEMENT is entered into as of this 2nd day of August, 2001,
between GS, and the Client, (collectively, the "Parties").
NOW THEREFORE, the Parties hereto mutually agree and covenant as follows:
I. SERVICES AND FEES
A. INFORMATION AGENT
Service. In connection with the Client's upcoming Rights
Offering to Common shareholders of Liberty All-Star Growth
Fund, Inc., GS will perform the following:
i. conduct a broker/nominee inquiry to ascertain the
number of beneficial owners
serviced by each bank and broker reorganization
department;
ii. distribute the applicable offering documents to each
institution's reorganization
department and forward additional materials as
requested;
iii. print documents as requested;
Xxxxxxxxx Xxxxxxxxxxx - New Jersey
Retainer Agreement
Liberty All-Star Growth Fund
August 2, 2001
Page 2
iv. set-up a dedicated toll-free number to respond to
inquiries, provide assistance to shareholders and
monitor the response to the offer;
v. enclose and mail the offering documents to interested
shareholders; and
vi. provide periodic reports to the Client as to the
results of the telephone campaign as
requested and the status of the offer.
For an additional fee, GS will, if requested by the Client,
proactively contact registered shareholders and/or
non-objecting beneficial holders ("NOBOs") to help promote a
high level of participation in the offer.
Fee. In consideration of the Information Agent Services to be
performed, the Client shall pay GS a base fee of Five Thousand
Five Hundred Dollars ($5,500). In addition to the base fee, a
$5.00 per telephone call fee will be charged for every inbound
telephone call received with regards to the Client's offer. The
base fee shall be paid simultaneously with the execution of this
Agreement.
Should the Client decide, to extended its offering expiration
date from its original expiration date, GS will charge an
extension base fee of Two Thousand Seven Hundred Fifty Dollars
($2,750) for every fifteen (15) day extension past the original
expiration date. If the extension is less than fifteen (15)
days there will be no additional charge.
The additional fee for contacting NOBOs and registered
shareholders, if requested, will include a unit fee of $5.00
per shareholder contacted, a $300 set-up fee and out-of-pocket
expenses related to telephone number lookups and line charges
associated with unanswered calls.
The Client will reimburse GS for all reasonable out-of-pocket
disbursements which may include postage, telephone and
courier charges, data transmissions and other expenses approved
by the Client.
II. GENERAL TERMS & CONDITIONS
A. TERM/TERMINATION
1. Unless otherwise provided elsewhere herein, this Agreement
shall commence on the date as stated herein and shall continue
until GS has completed the Services required of it hereunder.
GS may terminate this Agreement in the event of default by the
Client. Default shall include the Client's failure to pay
any amount within thirty (30) days after invoice for said
amount is delivered to the Client or if the Client defaults
in the performance of any representation, warranty or
obligation of the Client set forth herein and such default
continues, uncured, for a period of twenty (20) days after
delivery of written notice of such default by GS to the Client.
2. The undersigned Client may terminate this Agreement at any
time by providing GS with a seven (7) day advance written notice.
The Client shall be responsible for any fees to be paid to GS
for any work already completed on behalf of the Client on a pro
rata basis. Accordingly, GS will refund all advance monies
paid to it by the Client on a pro rata basis. GS shall make the
sole determination in its reasonable judgement as to the amount
of work already completed on behalf of the Client.
Xxxxxxxxx Xxxxxxxxxxx - New Jersey
Retainer Agreement
Liberty All-Star Growth Fund
August 2, 2001
Page 3
B. REPRESENTATIONS AND WARRANTIES
1. The Client represents and warrants that (a) it is duly
organized, validly existing and in good standing under
the laws of its jurisdiction of organization, (b) the execution,
delivery and performance of all transactions contemplated
thereby have been duly authorized by all necessary action and
will not result in a breach of or constitute a default under
the articles of incorporation or the operating agreement of
the Client or any indenture, agreement, or instrument to which
it is a party or by which it is bound, and (c) this Agreement has
been duly executed and received by the Client and constitutes
a legal, valid and binding obligation of the Client.
2. GS represents and warrants that (a) it is duly organized,
validly existing and in good standing under the laws
of its jurisdiction of organization, (b) the execution,
delivery and performance of all transactions contemplated
thereby have been duly authorized by all necessary action and
will not result in a breach of or constitute a default under the
articles of organization or the operating agreement of GS or
any indenture, agreement, or instrument to which it is a party
or by which it is bound, and (c) this Agreement has been duly
executed and received by GS and constitutes a legal, valid and
binding obligation of GS.
C. CONFIDENTIAL INFORMATION
GS agrees to preserve the confidentiality of (i) all
non-public information provided by the Client or its agents
for GS's use in fulfilling its obligations hereunder and
(ii) any information developed by GS based upon such
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 GS or any of its officers, directors, employees, agents or
affiliates; (x) was available to GS on a non-confidential basis
and in accordance with law prior to its disclosure to GS
by the Client; (y) becomes available to GS on a non-
confidential basis and in accordance with law from a person
other than the Client or any of its officers, directors,
employees, agents or affiliates who is not otherwise bound by a
confidentiality agreement with the Client or is not otherwise
prohibited from transmitting such information to a third
party; or (z) was independently and lawfully developed by GS
based on information described in clauses (w),(x) or (y) of this
paragraph. The Client agrees that all reports, documents and
other work product provided to the Client by GS Pursuant to the
terms of this Agreement are for the exclusive use of the
Client and may not be disclosed to any other person or entity
without the prior written consent of GS. The confidentiality
obligations set forth in this paragraph shall survive the
termination of this Agreement.
GS shall not disclose or use any nonpublic personal 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 the Client and/or its affiliates
("Client Information") except as may be necessary to carry
out the purposes of this Agreement, including use under
ss.248.14 (the processing and servicing exception) or ss.248.15
(the miscellaneous exception) of Regulation S-P in the ordinary
course of business to carry out those purposes. GS shall use best
efforts to safeguard and maintain the confidentiality of such
Client Information, and to limit access to and usage of such
Client Information to those employees, officers, agents and
representatives of GS who have a need to know the information
or as necessary to provide products or services under this
Agreement. The obligations contained in this paragraph shall
survive the termination of this Agreement.
Xxxxxxxxx Xxxxxxxxxxx - New Jersey
Retainer Agreement
Liberty All-Star Growth Fund
August 2, 2001
Page 4
D. INDEMNIFICATION
The Client hereby covenants and agrees to indemnify and hold
GS and its officers, directors and employees harmless from and
against any and all losses, claims, causes of action,
damages, liabilities, costs and expenses, including
reasonable attorneys fees ("Indemnified Loss") incurred by
any or all of the foregoing parties arising from or relating,
directly or indirectly, to: (i) a breach by the Client of the
terms of this Agreement, or (ii) the Services provided by GS or
the duties of GS to the Client under this Agreement, except
to the extent that any such Indemnified Loss is the result of
the negligence, gross negligence or willful misconduct of
any GS officer or employee. Client shall have the right,
upon notice to GS, but not the obligation, to assume the
defense of any action under the Agreement. GS hereby agrees
to notify the Client promptly of any claim or cause of action
against GS arising out, relating to, or in connection with
the Services provided by GS under this Agreement. The
obligations set forth in this paragraph shall survive
termination of this Agreement.
E. LATE PAYMENT
Unless otherwise provided elsewhere herein, all invoices
shall be due and paid by the Client within thirty(30) days after
the date of invoice. Any payments which are not received by
GS within that time will incur interest at the rate of one
percent (1%) per month or at the legally permissible interest
rate, whichever is lower.
F. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the
Parties with respect to the subject matter contained herein and
may not be amended, modified and/or waived except in writing
signed by both Parties. This Agreement shall be binding upon the
Parties and their respective successors and permitted assigns.
G. SEVERABILITY
The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions hereof,
all of which shall remain enforceable in accordance with their
terms.
H. NOTICES
Any notice or other communication to be given by either
party hereto to the other party hereto shall be in
writing and mailed by certified mail with return receipt
requested to the party to be notified at its address
set forth at the beginning of this Agreement (or at such
different address as the party to receive the notice
so designates by advance written notice to the other party).
Xxxxxxxxx Xxxxxxxxxxx - New Jersey
Retainer Agreement
Liberty All-Star Growth Fund
August 2, 2001
Page 5
I. GOVERNING LAW AND VENUE
This Agreement shall be governed and interpreted by the laws
of the State of Delaware, without giving effect to conflict of
laws, rules or principles, and shall inure to the benefit of
and be binding upon the successors and assigns of the Parties;
provided that this Agreement may not be assigned by either
party without the express written consent of the other party.
This paragraph shall survive termination of this Agreement.
Xxxxxxxxx Shareholder Liberty All-Star Growth Fund, Inc.
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Client
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Authorized Signature Authorized Signature
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Name Name
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Title Title
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Date Date
