EXHIBIT (k)(4)
[FORM OF INFORMATION AGENT AGREEMENT]
, 2004
The India Fund, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Letter of Agreement
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Ladies and 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 The India Fund, Inc. (the
"Company") to act as Information Agent in connection with its Non-Transferable
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 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:
o expenses incidental to the Offer, including postage and freight
charges incurred in delivering Offer materials;
o 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
The India Fund, Inc.
, 2004
Page 2
directory assistance, facsimile transmissions or other forms of
electronic communication;
o 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;
o 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 xxxx 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
The India Fund, Inc.
, 2004
Page 3
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.
(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 CSC 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 hereof. The Appendix to this Agreement shall be deemed to be
incorporated herein by reference as if fully set forth
The India Fund, Inc.
, 2004
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herein. This Agreement shall be binding upon all successors to the
Company (by operation of law or otherwise).
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, 2004
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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:
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Xxxxxxxxxxx X. Xxxxxx
Title: Director
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Agreed to and accepted as of
the date first set forth above:
THE INDIA FUND, INC.
By:
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Title: Director, President and Chairman
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APPENDIX
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FEES & SERVICES SCHEDULE
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BASE SERVICES $10,000
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o Advance review of Offer documents
o Strategic advice relating to the Offer
o Assistance in preparation of advertisements and news
releases
o Dissemination of Offer documents to bank and broker
community
o Communication with bank and broker community during Offer
period
ADDITIONAL SERVICES
o Direct telephone communication with retail (i.e., registered
and NOBO shareholders) TBD
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o $5.00 per completed call (incoming and outgoing)
o $5.00 TeleVote(TM) (per vote received)
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.
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FEE PAYMENT INSTRUCTIONS
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The Company shall pay GSC as follows:
o Upon execution of this Agreement, the Company shall pay GSC $10,000, which
amount is in consideration of GSC's commitment to represent the Company and
is non-refundable;
o If applicable, immediately prior to the commencement of the mailing, the
Company shall advance to QSC a portion of anticipated custodial charges;
and
o Upon completion of the Offer, the Company shall pay GSC the sum of (i) any
variable fees for Additional Services (e.g., telephone calls) which shall
have accrued over the course of the Offer, and (ii) all reimbursable
expenses_
GSC will send the Company an invoice for each of the foregoing payments.
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