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Exhibit (k)(3)
INFORMATION AGENT AGREEMENT
This document will constitute the agreement between XXXXXX HIGH INCOME
TRUST ("KHI"), with its principal executive offices at 000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx, XX 00000 and SHAREHOLDER COMMUNICATIONS CORPORATION ("SCC"),
with its principal executive offices at 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
relating to a Rights Offering (the "OFFER") of Xxxxxx High Income Trust (the
"TRUST").
The services to be provided by SCC will be as follows:
(1) INDIVIDUAL HOLDERS OF RECORD AND BENEFICIAL OWNERS
Target Group. SCC estimates that it may call between 3,000 to 5,100
of the approximately 19,000 outstanding beneficial and registered
shareholders of the TRUST. The estimate number is subject to
adjustment and SCC may actually call more or less shareholders
depending on the response to the OFFER or at KHI's direction.
Telephone Number Lookups. SCC will obtain the needed telephone
numbers from various types of telephone directories.
Initial Telephone Calls to Provide Information. SCC will begin
telephone calls to the target group as soon as practicable after
being instructed by KHI. Most calls will be made during 10:00 A.M. to
9:00 P.M. on business days and only during 10:00 A.M. to 5:00 P.M. on
Saturdays. No calls will be received by any shareholder after 9:00
P.M. on any day, in any time zone, unless specifically requested by
the shareholder. SCC will maintain "800" lines for shareholders to
call with questions about the OFFER. The "800" lines will be staffed
Monday through Friday between 9:00 a.m. and 9:00 p.m. SCC will
provide KHI with a weekly report reflecting the number of calls
received by SCC reflecting the names and phone number, if available.
Remails. SCC will coordinate remails of offering materials to the
shareholders who advise us that they have discarded or misplaced the
originally mailed materials. Use of overnight courier services must
receive prior approval by KHI.
Reminder/Extension Mailing. SCC will help to coordinate any targeted
or broad-based reminder mailing at the request of KHI. SCC will mail
only materials supplied by KHI or approved by KHI in writing.
Subscription Reports. SCC will provide KHI and/or the dealer manager
with subscription indications beginning not less than 7 business days
prior to expiration of the OFFER. These reports are based solely on
verbal indications received from the reorganization departments of
each participating broker dealer.
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(2) BANK/BROKER SERVICING
SCC will contact all banks, dealers and other nominee shareholders
("sponsors") holding stock as shown on appropriate portions of the
shareholder lists to ascertain quantities of offering materials
needed for forwarding to beneficial owners.
SCC will deliver offering materials by messenger to New York City
based intermediaries and by Federal Express or other means to non-New
York City based intermediaries. SCC will also follow-up by telephone
with each intermediary to insure receipt of the offering materials
and to confirm timely remailing of materials to the beneficial
owners.
SCC will maintain frequent contact with intermediaries to monitor
shareholder response and to insure that all liaison procedures are
proceeding satisfactorily. In addition, SCC will contact beneficial
holders directly, if possible, and do whatever may be appropriate or
necessary to provide information regarding the OFFER to this group.
SCC will, as frequently as practicable, report to KHI with responses
from intermediaries.
(3) PROJECT FEE
In consideration for acting as Information Agent SCC will receive a
project fee of $15,000.
(4) ESTIMATED EXPENSES
SCC will be reimbursed by KHI for its reasonable out-of-pocket
expenses incurred provided that SCC submits to KHI an expense report,
itemizing such expenses and providing copies of all supporting bills
in respect of such expenses. If the actual expenses incurred are less
than the portion of the estimated high range expenses paid in advance
by KHI, KHI will receive from SCC a check payable in the amount of
the difference at the time that SCC sends its final invoice for the
second half of the project fee.
SCC's expenses are estimated as set forth below and the estimates are
based largely on data provided to SCC by KHI. In the course of the
OFFER the expenses and expense categories may change due to changes
in the OFFER schedule or due to events beyond SCC's control, such as
delays in receiving offering material and related items. In the event
of a change of 10% or more from the total expenses estimated or new
expenses not originally contemplated, SCC will notify KHI by phone
and/or by letter for prior approval of such expenses.
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(5) PERFORMANCE
SCC will use its best efforts to achieve the goals of KHI but SCC is
not guaranteeing a minimum success rate. SCC's Project Fee as
outlined in Section 3 or Expenses as outlined in Section 4 are not
contingent on success or failure of the OFFER.
SCC's strategies revolve around a telephone information campaign. The
purpose of the telephone information campaign is to raise the overall
awareness amongst shareholders of the OFFER and help shareholders
better understand the transaction. This in turn may result in a
higher overall response.
(6) COMPLIANCE
SCC agrees that all activities by SCC and by others on behalf of SCC
pursuant to this Agreement shall be conducted in compliance with all
applicable (i) federal and state laws and regulations, including, but
not limited to all federal and state securities laws and regulations,
and (ii) requirements of the National Association of Securities
Dealers, Inc. and the New York Stock Exchange.
KHI agrees that all activities by KHI and by others (other than by,
or on behalf of SCC) on behalf of KHI pursuant to this Agreement
shall be conducted in compliance with all applicable (i) federal and
state laws and regulations, including, but not limited to all federal
and state securities laws and regulations, and (ii) requirements of
the National Association of Securities Dealers, Inc.
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In rendering the services contemplated by this Agreement, SCC agrees
not to make any representations, oral or written that are not
contained in the TRUST's current Prospectus for the OFFER, unless
previously authorized to do so in writing by KHI.
(7) PAYMENT
Payment for one half the project fee ($7,500) and one half the
estimated high range expenses ($19,416.00) for a total of $26,916.00
will be made at the signing of this contract. The balance, if any,
will be paid by KHI due thirty days after SCC sends its final
invoice.
(8) DISSEMINATION OF INFORMATION
In rendering the services contemplated by this Agreement, SCC agrees
that neither SCC, nor any person or entity acting on behalf of SCC
shall (i) mail or otherwise distribute any written materials unless
such materials have been provided by KHI to SCC for distribution, or
such distribution has been approved by KHI in advance in writing,
(ii) make any oral representations or other statements to any person
or entity relating in anyway to the TRUST or the OFFER other than as
set forth in (A) written materials provided by KHI to SCC for use by
SCC in oral communications pursuant to this Agreement or (B) the then
current prospectus for the OFFER. In connection with representations
or other statements based on information set forth in such
prospectus, SCC shall take appropriate steps to ensure that
information is presented in a manner that is fair, balanced and not
misleading.
(9) TRAINING
SCC shall at its own expense provide training to all persons who are
to be involved in communications with shareholders or intermediaries
so as to ensure that all such persons review carefully and understand
the OFFER and the prospectus for the TRUST so as to be in a position
to effectively communicate with shareholders and the intermediaries.
Training materials will be based solely on the information provided
in the prospectus or supplemented by KHI.
(10) MISCELLANEOUS
SCC will hold in confidence and will not use nor disclose to third
parties information we receive from KHI, or information developed by
SCC based upon such information we receive, except for information
which was public at the time of disclosure or becomes part of the
public domain without disclosure by SCC or information which we learn
from a third party which does not have an obligation of
confidentiality to KHI or the TRUST.
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In the event the project is cancelled for an indefinite period of
time after the signing of this Agreement and before the expiration of
the OFFER, SCC will be reimbursed by KHI for any expenses incurred
and a pro rata portion of the project fee as calculated based upon
the number of days lapsed from the signing of this Agreement through
the original expiration date.
KHI agrees to indemnify, hold harmless, reimburse and defend SCC, and
its officers, agents and employees, against all claims or threatened
claims, costs, expenses, liabilities, obligations, losses or damages
(including reasonable legal fees and expenses) of any nature,
incurred by or imposed upon SCC, or any of its officers, agents or
employees, which results, arises out of or is based upon services
rendered to KHI in accordance with the provisions of this AGREEMENT,
provided that such services are rendered to KHI without any
negligence, willful misconduct, bad faith or reckless disregard on
the part of SCC, or its officers, agents and employees. SCC agrees to
advise the TRUST of any claim or liability promptly after receipt of
any notice thereof. The TRUST shall not be liable for any settlement
without its written consent.
This agreement will be governed by and construed in accordance with the
laws of the State of New York. This AGREEMENT sets forth the entire AGREEMENT
between SCC and KHI with respect to the agreement herein and cannot be modified
except in writing by both parties.
IN WITNESS WHEREOF, the parties have signed this AGREEMENT this _____
day of March 1999.
XXXXXX HIGH SHAREHOLDER COMMUNICATIONS
INCOME TRUST CORPORATION
By_________________________ By_________________________
Xxxxxx X. Xxxxxxx
Vice President
