Exhibit (K)(6)
[XXXXXXXXX SHAREHOLDER LETTERHEAD]
April 29, 2002
The Xxxxx Fund, Inc.
c/o Phoenix Investment Partners
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Re: Letter of Agreement
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 The Xxxxx Fund Inc.
(the "Company") to act as Information Agent in connection with
its Rights Offering (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 paragraph (b) hereof, the
Company agrees that it shall be solely responsible
for the following reasonable costs and expenses,
authorized by them, and that the Company shall, at
GSC's sole discretion, (i) reimburse GSC for such
reasonable 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
but not limited to; expenses incurred by GSC
in the preparation and placement of newspaper
ads, including typesetting and space charges,
postage and freight charges incurred by GSC
in the delivery of Offer documents, printing
costs; charges for the production of
shareholder lists (paper, computer cards,
etc.), statistical analyses, mailing labels,
or other forms of information requested by
The Xxxxx Fund, Inc. or its agents and other
expenses or disbursements authorized by The
Xxxxx Fund, Inc. or its agents;
- 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;
- 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, media relations, stock watch and
analytical services.
(d) 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.
(e) 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 own 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.
(f) 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 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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 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: /s/ XXXXXXX X. XXXXXX
----------------------
Xxxxxxx X. Xxxxxx
Title: Managing Director
--------------------
Agreed to and accepted as of
the date first set forth above:
THE XXXXX FUND INC.
By: /s/ XXXXXXX XXXXX
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Title:
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APPENDIX I
FEES & SERVICES SCHEDULE
BASE SERVICES $12,500.00
------------- ----------
- Advance review of Offer documents
- Assistance in preparation and posting of advertisements and news releases
- Dissemination of Offer documents to bank and broker community
- Telephone communications with target shareholders TBD
- $4.50 per completed call (incoming and outgoing) ---------
NOTE: The foregoing fees are exclusive of reimbursable expenses as described
in paragraph (c) 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 $6,250, which
amount is in consideration of GSC's commitment to represent the Company
and is non-refundable;
- Upon completion of the Offer, the Company shall pay GSC the sum of (i)
$6,250, (ii) any variable fees for Premium Services (e.g., telephone
calls) which shall have accrued over the course of the Offer and (iii)
all reimbursable expenses.
GSC will send the Company an invoice for each of the foregoing payments.
