[On Xxxxxxxxx Shareholder Letterhead]
August 27, 2003
1838 Bond-Debenture Trading Fund
0000 Xxxxxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxx xx Xxxxxxx, XX 00000
Attn.: Xx. Xxxx X. Xxxxxxxxxx
Vice President and Secretary
Re: Letter of Agreement
-------------------
Dear Sir or Madam:
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 1838 Bond-Debenture Trading
Fund (the "Company") to act as Information Agent in connection with its Funds
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 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 bill 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 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
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.
(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 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.
Signature: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxx
-------------------------------------
Title: Vice President, Corporate Srvs. Group
-------------------------------------
Agreed to and accepted as of
the date first set forth above:
1838 BOND-DEBENTURE TRADING FUND
Signature: /s/ Xxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxxx
--------------------------
Title: Vice President/Secretary
--------------------------
APPENDIX I
1838 BOND-DEBENTURE TRADING FUND
FEES & SERVICES SCHEDULE
------------------------
BASE SHAREHOLDER MEETING SERVICES $7,000
--------------------------------- ------
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 SHAREHOLDER MEETING SERVICES
---------------------------------------
o Direct telephone communication with retail (i.e., registered and NOBO
shareholders)Analysis of executive compensation scheme
o $5.00 per completed call (incoming and outgoing)
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.
--------------------------------------------------------------------------------
FEE PAYMENT INSTRUCTIONS
The Company shall pay GSC as follows:
o Upon execution of this Agreement, the Company shall pay GSC $7,000, 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 GSC 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.
--------------------------------------------------------------------------------
