FORM OF INFORMATION AGENT AGREEMENT]
Exhibit (d)(5)
[FORM OF INFORMATION AGENT AGREEMENT]
[________], 2013
Xxxxxxx Capital, Inc.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx Xxxxxxx, XX 00000
Re: Information Agent
This Letter of Agreement, including the Appendix attached hereto (collectively, this “Agreement”), sets forth the terms and conditions of the engagement of Xxxxxxxxx Inc. (“Xxxxxxxxx”) by Xxxxxxx Capital, Inc. (the “Company”) to act as Information Agent in connection with the Company’s upcoming rights offering for its Common Stock (the “Offer”). The term of this Agreement shall be the term of the Offer, including any extensions thereof.
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(a)
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Services. Xxxxxxxxx shall perform the services described in the Fees & Services Schedule attached hereto as Appendix I (such services, collectively, the “Services”).
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(b)
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Fees. In consideration of Xxxxxxxxx’x performance of the Services, the Company shall pay Xxxxxxxxx the amounts, and pursuant to the terms, set forth on the Fees & Services Schedule attached hereto as Appendix I, together with the Expenses (as defined below). The Company acknowledges and agrees that the Fees & Services Schedule shall be subject to adjustment if the Company requests Xxxxxxxxx to provide services with respect to additional matters or a revised scope of work.
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(c)
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Expenses. In addition to the fees and charges described in paragraphs (b) and (d) hereof, Xxxxxxxxx shall charge the Company, and the Company shall be solely responsible, for the following costs and expenses (collectively, the “Expenses”):
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costs and expenses incidental to the Offer, including without limitation the mailing or delivery of Offer materials;
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costs and expenses relating to Xxxxxxxxx’x work with its agents or other parties involved in the Offer, including without limitation charges for bank threshold lists, data processing, telephone directory assistance, facsimile transmissions or other forms of electronic communication;
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costs and expenses incurred by Xxxxxxxxx at the Company’s request or for the Company’s convenience, including without limitation for copying, printing of additional and/or supplemental material and travel by Xxxxxxxxx’x personnel; and
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any other costs and expenses authorized by the Company during the course of the Offer, including without limitation those relating to advertising (including production and posting), media relations and analytical services.
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The Company shall pay all applicable taxes incurred in connection with the delivery of the Services or Expenses.
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(d)
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Custodial Charges. Xxxxxxxxx agrees to check, itemize and pay on the Company’s behalf the charges of brokers and banks, with the exception of Broadridge Financial Solutions, Inc. (which will xxxx the Company directly), for forwarding the Company’s offering material to beneficial owners. The Company shall reimburse Xxxxxxxxx for such broker and bank charges in the manner described in the Fees & Services Schedule.
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(e)
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Compliance with Applicable Laws. The Company and Xxxxxxxxx hereby represent to one another that each shall comply with all applicable laws relating to the Offer, including, without limitation, the Securities Exchange Act of 1934, as amended, as applicable to business development companies, and the rules and regulations promulgated thereunder.
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(f)
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Indemnification; Limitation of Liability.
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(i)
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The Company shall indemnify and hold harmless Xxxxxxxxx, its affiliates and their respective stockholders, officers, directors, employees and agents from and against any and all losses, claims, damages, costs, charges, counsel fees and expenses, payments, expenses and liability (collectively, “Losses”) arising out of or relating to the performance of the Services, including the reasonable costs and expenses of defending against any Loss or enforcing this Agreement, except to the extent such Losses shall have been determined by a court of competent jurisdiction to be a result of Xxxxxxxxx’x gross negligence, bad faith or willful misconduct.
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(ii)
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Xxxxxxxxx shall indemnify and hold harmless the Company, its affiliates and their respective officers, directors, employees and agents from and against any and all Losses arising out of or relating to the performance of the Services, including the reasonable costs and expenses of defending against any Loss or enforcing this Agreement, to the extent such Losses shall have been determined by a court of competent jurisdiction to be a result of Xxxxxxxxx’x gross negligence, bad faith or willful misconduct.
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(iii)
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Notwithstanding anything herein to the contrary, but without limiting the Company’s indemnification obligations set forth in clause (i) above, neither party shall be liable for any incidental, indirect, special or consequential damages of any nature whatsoever, including, but not limited to, loss of anticipated profits, occasioned by a breach of any provision of this Agreement, even if apprised of the possibility of such damages.
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(iv)
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Any liability whatsoever of Xxxxxxxxx, its affiliates or any of their respective stockholders, officers, directors, employees or agents hereunder or otherwise relating to or arising out of performance of the Services will be limited in the aggregate to the fees and charges paid hereunder by the Company to Xxxxxxxxx (but not including Expenses).
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(v)
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This paragraph (f) shall survive the termination of this Agreement.
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(g)
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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. The parties waive all right to trial by jury in any action, proceeding or counterclaim arising out of this Agreement.
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(h)
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Relationship. The Company agrees and acknowledges that Xxxxxxxxx shall be the primary information agent retained by the Company in connection with the Offer. Notwithstanding anything contained herein to the contrary, the Company may terminate this Agreement and appoint another information agent in the event Xxxxxxxxx fails to perform the Services hereunder, which failure is not cured within five (5) days following the Company’s delivery of written notice thereof to Xxxxxxxxx.
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(i)
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Confidentiality. Xxxxxxxxx agrees to preserve the confidentiality of (i) all material non-public information provided by the Company or its agents for Xxxxxxxxx’x use in fulfilling its obligations hereunder and (ii) any information developed by Xxxxxxxxx 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 other than as a result of a disclosure by Xxxxxxxxx or any of its officers, directors, employees, agents or affiliates; (x) was available to Xxxxxxxxx on a nonconfidential basis and in accordance with law prior to its disclosure to Xxxxxxxxx by the Company; (y) becomes available to Xxxxxxxxx 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 Xxxxxxxxx without access to the Confidential Information. The Company agrees that all reports, documents and other work product provided to the Company by Xxxxxxxxx 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 Xxxxxxxxx or unless required by law. The confidentiality obligations set forth in this paragraph shall survive the termination of this Agreement.
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(j)
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Entire Agreement; Appendix. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between 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).
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[Remainder of page intentionally left blank. Signature page follows.]
If the above is acceptable, please execute and return the enclosed duplicate of this Agreement to Xxxxxxxxx Inc., 000 Xxxxxxxxxx Xxxx. – 26th floor, Xxxxxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx.
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XXXXXXXXX INC.
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| By: |
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Xxxxxx X. Xxxxxx
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| Title: |
Managing Director
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| Agreed to and accepted as of | |||
| the date first set forth above: | |||
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XXXXXXX CAPITAL, INC.
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| By: |
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Xxxxxxxx X. Xxxxxxxxx
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| Title: |
Chief Financial Officer
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APPENDIX I
XXXXXXX CAPITAL, INC.
FEES & SERVICES SCHEDULE
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BASE SERVICES
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· Advance review of Offer documents
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· Strategic advice relating to the Offer
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· Coordination of tombstone advertisement placement in newspapers (cost for advertisement dependent upon newspaper and size of advertisement)
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· Dissemination of Offer documents to bank and broker community
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· Communication with bank and broker community during Offer period
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ADDITIONAL SERVICES
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· Direct telephone communication with retail (i.e., registered and NOBO shareholders)
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$6.00 per call
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NOTE: The foregoing fees are exclusive of 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 per extension if the Offer is extended for any reason.
FEE PAYMENT INSTRUCTIONS
The Company shall pay Xxxxxxxxx as follows:
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Upon execution of this Agreement, the Company shall pay Xxxxxxxxx $7,000, which amount is in consideration of Xxxxxxxxx’x commitment to represent the Company and is non-refundable;
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If applicable, immediately prior to the commencement of the mailing, the Company shall advance to Xxxxxxxxx a portion of anticipated custodial charges; as described in paragraph (d) of this Agreement; and
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Upon completion of the Offer, the Company shall pay Xxxxxxxxx the sum of (i) any variable fees as described above under “Additional Services” which have accrued over the course of the Offer, (ii) all unreimbursed custodial charges, as described in paragraph (d) of this Agreement, and (iii) all Expenses.
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Xxxxxxxxx will send the Company an invoice for each of the foregoing payments, which invoices will include written transfer instructions.
