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EXHIBIT (k)(5)
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March 10, 1998
The Xxxxx Fund, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
LETTER OF AGREEMENT
This Letter of Agreement (the "Agreement") sets forth the terms and
conditions under which Xxxxxxxxx & Company Inc. ("Xxxxxxxxx") has been
retained by The Xxxxx Fund, Inc. ("The Xxxxx Fund, Inc.") as Information
Agent for its Rights Offering. The term of the Agreement shall be the term
of the Offer.
1. During the term of the Agreement, Xxxxxxxxx will: provide advice and
consultation with respect to the planning and execution of the Offer;
assist in the preparation and placement of newspaper ads; assist in
the distribution of Offer documents to brokers, banks, nominees,
institutional investors, and other shareholders and investment
community accounts; answer collect telephone inquiries from
shareholders and their representatives; and, if requested, call
individuals who are registered holders.
2. The Xxxxx Fund, Inc. will pay Xxxxxxxxx a fee of $12,500.00, of which
half is payable in advance per the enclosed invoice and the balance at
the expiration of the Offer, plus an additional fee to be mutually
agreed upon if the Offer is extended more than fifteen days beyond the
initial expiration date. If Xxxxxxxxx is requested to call
individuals who are registered holders of Common Stock or
non-objecting beneficial owners (NOBO's) of The Xxxxx Fund, Inc., The
Xxxxx Fund, Inc. will pay Xxxxxxxxx an additional sum computed on the
basis of $4.50 per call. In addition, The Xxxxx Fund, Inc. will
reimburse Xxxxxxxxx for reasonable costs and expenses incurred by
Xxxxxxxxx in fulfilling the Agreement, including but not limited to:
expenses incurred by Xxxxxxxxx in the preparation and placement of
newspaper ads, including typesetting and space charges; postage and
freight charges incurred by Xxxxxxxxx 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.
3. If requested, we will check, itemize and pay, on your behalf, from
funds provided by you, the charges of brokers and banks, with the
exception of ADP Proxy Services which will xxxx you directly, for
forwarding Offer material to beneficial owners. To ensure that we
have sufficient funds in your account to pay these bills promptly, you
agree to provide us, at the time we complete the initial delivery of
this material, with a preliminary payment equal to 75% of the
anticipated broker and bank charges for distributing this material.
For this service, you will pay us five dollars and fifty cents ($5.50)
for each broker and bank invoice paid by us. If you prefer to pay
these bills directly, please strike out and initial this clause before
returning the Agreement to us.
4. Xxxxxxxxx hereby agrees not to make any representations not included in
the Offer documents.
5. The Xxxxx Fund, Inc. agrees to indemnify and hold Xxxxxxxxx harmless
against any loss, damage, expense (including, without limitation,
legal and other related fees and expenses), liability or claim arising
out of Xxxxxxxxx'x fulfillment of the Agreement (except for any loss,
damage, expense, liability or claim arising out of Xxxxxxxxx'x own
negligence or misconduct). At its election, The Xxxxx Fund, Inc. may
assume the defense of any such action. Xxxxxxxxx hereby agrees to
advise The Xxxxx Fund, Inc. of any such liability or claim promptly
after receipt of any notice thereof. The indemnification contained in
this paragraph will survive the term of the Agreement.
6. Xxxxxxxxx agrees to preserve the confidentiality of all non-public
information provided by The Xxxxx Fund, Inc. or its agents for our use in
providing services under this Agreement, or information developed by
Xxxxxxxxx based upon such non-public information.
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IF THE ABOVE IS AGREED TO BY YOU, PLEASE SIGN AND RETURN THE ENCLOSED DUPLICATE
OF THIS AGREEMENT TO XXXXXXXXX & COMPANY INC., XXXX XXXXXX XXXXX, XXX XXXX, XXX
XXXX 00000, ATTENTION: XXXXX XXXX, CONTRACT ADMINISTRATOR.
ACCEPTED: Sincerely,
THE XXXXX FUND, INC. XXXXXXXXX & COMPANY INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxx Xx Xxxxxxx
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Title: Vice President Title: Senior Managing Director
Date: 3/23/98
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