Exhibit 99(k)(3)
November [__], 2005
The Greater China Fund, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx XX 00000
This document will serve as the agreement (the "Agreement") between The Xxxxxx
Group, Inc. ("The Xxxxxx Group") and The Greater China Fund, Inc. (the "Fund"),
pursuant to which The Xxxxxx Group will provide the services set forth below in
connection with the Fund's rights offering.
1. DESCRIPTION OF SERVICES
a) The services to be provided by The Xxxxxx Group under this Agreement
include, but are not limited to:
i) The contacting of banks, brokers and intermediaries to determine
the number of beneficial owners serviced by each and the
maintenance of frequent contact with such banks, brokers and
intermediaries to monitor shareholder response;
ii) The distribution of the offering documents to banks, brokers, and
intermediaries and the forwarding of additional materials as
requested, by messenger within New York City and by Fedex or
other similar courier service to locations outside New York City,
and the immediate telephonic follow-up with such banks, brokers
and intermediaries to ensure receipt and prompt re-mailing of
such materials;
iii) The printing of documents as requested;
iv) The establishment and maintenance of a dedicated toll-free
number, which will be open between the hours of 9:00 a.m. and
11:00 p.m. EST Monday through Friday, on which The Xxxxxx Group's
customer service representatives will respond to inquiries,
provide assistance to shareholders to ensure the proper
completion of the rights offering documents, and monitor the
response to the offer;
v) The enclosing and mailing (including re-mailing) of the offering
documents to the Funds'shareholders, and the coordination of
targeted or broad-based reminder mailings at the request of the
Fund; and
vi) Providing periodic reports on the progress of the rights offering
and, beginning two weeks prior to the expiration date of the
rights offering, extensive reports with respect to shareholder
participation and the number and percentage of rights being
exercised.
b) If requested by the Fund, The Xxxxxx Group will, for an additional fee
(set forth below), proactively contact registered shareholders and/or
non- objecting beneficial holders (NOBOs) to help promote a high level
of participation in the offer.
c) Upon the request of the Fund, The Xxxxxx Group will review the rights
offering documentation in advance of the launch of the offer and will assist in
connection with the preparation of news releases and other communications during
the course of the rights offering.
d) The Xxxxxx Group agrees that no oral or written representations will be
provided to shareholders or prospective shareholders that are not contained in
documentation produced by the Fund in connection with the rights offering.
2. FEES
a) The Xxxxxx Group agrees to perform the services described above for a
base fee of $7,000, plus out-of-pocket expenses. The base fee shall be paid
at such time as this Agreement is executed.
b) The Fund will reimburse The Xxxxxx Group for reasonable out-of-pocket
expenses, which may include postage, FedEx, Messengers, telephone and other
related items approved in advance by the Fund. Any out-of-pocket expenses
incurred will be invoiced to the Fund, itemizing such expenses and
providing copies of all supporting bills in respect of such expenses, after
the completion of the rights offering.
c) In addition to the base fee, a $4.25 per telephone call fee will be
charged for every inbound telephone call received from a shareholder
regarding the Fund's rights offering.
d) The additional fee for contacting NOBOs and registered shareholders, if
2
requested, will include a fee of $3.50 per shareholder contacted, and
out-of pocket expenses related to telephone number lookups @ $.35, Data
processing, householding, Call Center Training and Quality Control @ $.12.
e) The Xxxxxx Group estimates that the aggregate of fees for its services
and reimbursement of its reasonable out-of-pocket expenses described
above will not exceed $25,000.
3. CONFIDENTIALITY
The Xxxxxx Group and the Fund 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 performance of this
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 the Fund
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 Xxxxxx
Group who have a need to know the information or as necessary to provide
the services under this Agreement.
4. INDEMNIFICATION
a) The Xxxxxx Group shall be entitled to rely upon any written instructions
or directions furnished to it by an appropriate Officer of the Fund
(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 the Fund which conforms to the applicable requirements
of this Agreement and which The Xxxxxx Group reasonably believes to be
genuine.
3
(b) The Fund 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 the Fund, 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
the Fund harmless from and against any and all losses, damages, costs,
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.
5. TERMINATION
This agreement shall remain in effect until the conclusion of the Fund
rights offering or, prior to that, upon 30 days' written notice by either
party to the other.
6. 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.
7. 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.
8. ASSIGNMENT
This Agreement shall not be assigned without the prior written consent of
each party to the Agreement.
9. COUNTERPARTS
4
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.
10. 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.
11. 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.
12. SURVIVAL
The provisions of Sections 3, 4, and 6 shall survive any termination, for
any reason, of this Agreement.
If you are in agreement with the above, kindly sign both copies of this
Agreement in the space provided for that purpose below and return one copy to
us. Additionally, an invoice for the base fee is attached and The Xxxxxx Group
requires that we receive this fee prior to the mailing of the offering
materials.
----------------------------
Xxxx X. Xxxxx
Senior Managing Director
5
AGREED:
The Greater China Fund, Inc.
------------------------------------
Print Authorized Name
------------------------------------
Authorized Signature
------------------------------------
Title
------------------------------------
Date
6
