(XXXXXXXXX SHAREHOLDER LOGO)
Exhibit (2)(d)(4)
February 12, 2004
Central Europe and Russia Fund, Inc.
c/o Deutsche Asset Management
000 Xxxx Xxxxxx
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 Shareholder Communications Inc. ("GSC") by Central Europe and Russia
Fund, Inc. (the "Company") to act as Information Agent in connection with its
upcoming Rights Offer (the "Offer"). The term of the Agreement shall be the term
of the Offer, including any extensions thereof.
(a) Services. GSC shall perform the services described in the Fees &
Services Schedule attached hereto as Appendix I (collectively, the
"Services").
(b) Fees. In consideration of GSC's performance of the Services, the
Company shall pay GSC the amounts, and pursuant to the terms, set
forth on the Fees & Services Schedule attached hereto as Appendix I.
(c) Expenses. In connection with GSC's 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
GSC's sole discretion, (i) reimburse GSC for such costs and expenses
actually incurred by GSC, (ii) pay such costs and expenses directly
and/or (iii) advance sufficient funds to GSC for payment of such
costs and expenses:
- expenses incidental to the Offer, including postage and
freight charges incurred in delivering Offer materials;
- expenses incurred by GSC 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;
- expenses incurred by GSC 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 GSC's executives;
Central Europe and Russia Fund, Inc.
February 12, 2004
Page 2
- 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.
(d) Custodial Charges. GSC agrees to check, itemize and pay on the
Company's behalf the charges of brokers and banks, with the
exception of ADP Proxy Services and Prudential Securities which will
bill the Company directly, for forwarding the Company's offering
material to beneficial owners. The Company agrees to provide GSC,
prior to the commencement of the initial distribution of offering
materials to such brokers and banks, with a preliminary payment
equal to 75% of GSC's 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 GSC an administrative fee of five
dollars ($5.00) for each broker and bank invoice paid by GSC 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.
(e) Compliance with Applicable Laws. The Company and GSC 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.
(f) Indemnification. The Company agrees to indemnify and hold harmless
GSC 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 GSC, which result from claims, actions, suits,
subpoenas, demands or other proceedings brought against or involving
GSC which directly relate to or arise out of GSC's 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
GSC's gross 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.
(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
Central Europe and Russia Fund, Inc.
February 12, 2004
Page 3
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.
(h) Exclusivity. The Company agrees and acknowledges that GSC 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.
(i) Additional Services. In addition to the Services, the Company may
from time to time request that GSC provide it with certain
additional consulting or other services. The Company agrees that
GSC's 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 GSC's then-current rates.
(j) Confidentiality. GSC agrees to preserve the confidentiality of (i)
all material non-public information provided by the Company or its
agents for GSC's use in fulfilling its obligations hereunder and
(ii) any information developed by GSC 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 GSC or any of its officers,
directors, employees, agents or affiliates; (x) was available to GSC
on a nonconfidential basis and in accordance with law prior to its
disclosure to GSC by the Company; (y) becomes available to GSC 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 GSC 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 GSC 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 GSC. The
confidentiality obligations set forth in this paragraph shall
survive the termination of this Agreement.
(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
Central Europe and Russia Fund, Inc.
February 12, 2004
Page 4
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).
IF THE ABOVE IS AGREED TO BY YOU, PLEASE EXECUTE AND RETURN THE ENCLOSED
DUPLICATE OF THIS AGREEMENT TO XXXXXXXXX SHAREHOLDER COMMUNICATIONS INC.,
00 XXXXX XXXXXX - 00XX XXXXX, XXX XXXX, XXX XXXX 00000, ATTENTION: XXXXX
XXXX, CONTRACT ADMINISTRATOR.
Sincerely,
XXXXXXXXX SHAREHOLDER
COMMUNICATIONS INC.
By:
--------------------------------
Xxxxx X. Xxxxxx
Title:
Senior Managing Director
--------------------------------
Agreed to and accepted as of
the date first set forth above:
CENTRAL EUROPE AND RUSSIA FUND, INC.
By:
--------------------------------
Title:
--------------------------------
APPENDIX I
FEES & SERVICES SCHEDULE
BASE SERVICES $5,000
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- Advance review of Offer documents
- Advice and Consultation with respect to set up and progress of Offer
- Strategic advice relating to the Offer
- Assistance in preparation of advertisements and news releases
- Dissemination of Offer documents to bank and broker community
- Communication with bank and broker community during Offer period
ADDITIONAL SERVICES
- Direct telephone communication with retail (i.e., registered and NOBO
shareholders) TBD
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- $5.00 per completed call (incoming and outgoing)
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 GSC as follows:
- Upon execution of this Agreement, the Company shall pay GSC $2,500, which
amount is in consideration of GSC's commitment to represent the Company
and is non-refundable;
- If applicable, immediately prior to the commencement of the mailing, the
Company shall advance to GSC a portion of anticipated custodial charges;
and
- Upon completion of the Offer, the Company shall pay GSC the sum of (i)
$2,500, (ii) any variable fees for Additional Services (e.g., telephone
calls) which shall have accrued over the course of the Offer, (iii) the
Success Fee, if earned and (iv) all reimbursable expenses.
GSC will send the Company an invoice for each of the foregoing payments.
