REORGANIZATION SUPPORT SERVICE AGREEMENT
Exhibit 2(k)(3)
Agreement made as of the day of May , 2009 between The India Fund, Inc. with
principal offices at (“The India Fund, Inc.”) and The Colbent Corporation
with principal offices at 000 Xxx Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Colbent”).
W I T N E S S E T H
WHEREAS, The India Fund, Inc. desires to engage Colbent to act as Subscription Agent to
complete the rights offering for The India Fund; and
WHEREAS, Colbent owns proprietary software for, and is in the business of performing the
functions of Subscription Agent for exchange projects, and desires to be engaged for such purposes
in connection with the Rights Offering; and
NOW, THEREFORE, The India Fund, Inc. hereby engages Colbent as Subscription Agent to perform
the processing services set forth herein required to complete the Rights Offering and Colbent
agrees to provide such services under the following terms and conditions:
1. Engagement.
The India Fund, Inc. hereby engages Colbent to act as Subscription Agent to complete the Rights
Offering. Colbent and The India Fund, Inc. will consult with each other concerning the specific
services to be provided by Colbent and an agreeable timetable to perform the services. As
Subscription Agent, Colbent shall be responsible to supply all needed personal and software
required to complete the Rights Offering, with the exception of staffing and supplying telephone
support for the Rights Offering, which will be supplied by The India Fund, Inc., or other
Information Agent.
2. Specific Services, Fees.
Exhibit 1, attached hereto and made a part hereof, as the same shall be amended from time to time
by the agreement of the parties, shall set forth the agreed upon services, procedures, time lines,
fees, out of pocket expenses and other performance standards required of each party for the
Exchange.
3. Term.
The term of this Agreement shall commence on the date first set forth above and shall continue for
the duration of the Rights Offering.
1
4. Representations and Warranties of Colbent.
Colbent represents and warrants to The India Fund, Inc. that:
4.1 it is a corporation duly organized and existing and in good standing under the laws of
The Commonwealth of Massachusetts;
4.2 it is duly qualified to carry on its business in The Commonwealth of Massachusetts;
4.3 it is empowered under applicable laws and by its Articles of Incorporation and By-Laws
to enter into and perform this Agreement;
4.4 all requisite corporate proceedings have been taken to authorize it to enter into and
perform this Agreement;
4.5 it is the sole owner of the Corporate Reorg System (CRSÔ) and other related
proprietary software (the “CRSÔ Software System”), and has the right to use the other
software in providing the processing services as provided hereunder;
4.6 Colbent’s CRSÔ Software System and Colbent’s use of such other software do not
infringe upon any copyright, patent or other proprietary interest of any person, firm or
organization; and
5. Representations and Warranties of The India Fund, Inc..
The India Fund, Inc. represents and warrants to Colbent that:
5.1 it is a corporation organized and existing and in good standing under the laws
of the State of ;
5.2 it is empowered under applicable laws and by its Articles of Incorporation and
By Laws to enter into and perform this Agreement;
5.3 all requisite corporate proceedings have been taken to authorize it to enter
into and perform this Agreement;
5.4 the execution, delivery and performance of this agreement by The India Fund, Inc. will
not require the consent of any other party, or violate, conflict with, or result in the
breach of any term condition, or provision of any existing contract, agreement, law,
ordinance, rule or regulation to which it is subject.
2
6. Confidentiality.
Both parties agree that they, their personnel, agents or representatives will not, at any time
during the term of this Agreement or after its termination, reveal, divulge, or make known to any
person, firm, corporation or other business organization, any customers’ lists, trade secrets, cost
figures and projections, profit figures and projections or any other secret, confidential or
proprietary information whatsoever, whether of The India Fund, Inc., Colbent or any of the Issuers,
used or gained by The India Fund, Inc. or Colbent during performance under this Agreement. Colbent
and The India Fund, Inc. further covenant and agree to retain all such knowledge and information
acquired during and after the term of this Agreement respecting such lists, trade secrets, or any
secret, confidential or proprietary information whatsoever in trust for the sole benefit of The
India Fund, Inc. or Colbent and their successors and assigns. The above prohibition of disclosure
shall not apply to the extent that The India Fund, Inc. or Colbent must disclose such data to a
governmental authority or a court of competent jurisdiction.
The India Fund, Inc. acknowledges that its personnel may be exposed to proprietary information of
Colbent, including, but not limited to Colbent’s proprietary CRSÔ Software System, and The
India Fund, Inc. agrees that it will take all appropriate steps to ensure that its personnel will
keep all aspects of Colbent’s CRSÔ Software System confidential.
Both parties acknowledge and agree that a breach of this Section by a party or its personnel,
agents or representatives is highly likely to cause significant, irreparable harm to the other
party and that such other party shall be entitled to temporary, preliminary and/or injunctive
relief, or any other equitable remedy deemed appropriate by a reviewing court, to prevent a breach
or threatened breach of this Section in order to protect its interests in its Confidential
Information.
7. Standard of Care.
Each party will at all times act in good faith and agrees to use its best efforts within reasonable
limits to insure the accuracy of all services performed under this Agreement, but assumes no
responsibility, and will not be liable, for loss or damage due to errors unless said errors are
caused by its gross negligence, or willful misconduct or that of its employees.
8. Colbent Indemnification.
Colbent hereby agrees to indemnify, defend and hold harmless The India Fund, Inc. and their
respective officers, shareholders, employees and representatives from and against any and all
losses, claims, damages, liabilities and expenses, including reasonable attorney’s fees and costs,
arising out of any infringement or misappropriation of third party intellectual property rights
related to Colbent’s CRSÔ Software System and any other software utilized by Colbent in
performing services under this Agreement.
3
The India Fund, Inc. shall provide Colbent with prompt written notice of any assertion of any
claim, demand or the institution of any action that may expose Colbent to liability hereunder. In
defending any such claim, demand or action, Colbent shall be represented by counsel of its own
choosing.
9. Force Majeure.
In the event either party is unable to perform its obligations under the terms of this Agreement
because of acts of God, strikes, equipment or transmission failure or damage reasonably beyond its
control, such party shall not be liable for damages to the other for any damages resulting from
such failure to perform or otherwise from such causes.
10. Consequential Damages.
Neither party to this Agreement shall be liable to the other party for consequential damages under
any provision of this Agreement or for any consequential damages arising out of any act or failure
to act hereunder even if that party has been advised of or has foreseen the possibility of such
damages.
11. Disaster Plan.
Colbent will maintain a disaster back-up plan whereby the services contemplated by this Agreement
can be performed by Colbent on an alternative computer hardware and software system within
forty-eight (48) hours if there is a catastrophic event that renders Colbent’s computer hardware
and software system upon which the services are then being performed inoperable.
12. Insurance.
Colbent maintains errors or omissions insurance coverage in the amount of Ten Million Dollars
($10,000,000.00) per error.
13. Right to Audit.
The India Fund, Inc. and/or its internal auditors and examiners may conduct, at The India Fund,
Inc.’s option and expense, appropriate audits and examinations of Colbent’s operations relating to
the performance of the services hereunder in accordance with applicable regulatory requirements,
and to verify that the services are being performed in accordance with this Agreement. Such audits
shall require reasonable prior notice to Colbent; provided, however, that any audit shall not
interfere with Colbent’s ability to perform its obligations hereunder. The India Fund, Inc., its
examiners or auditors shall not have access to Colbent’s proprietary data or the proprietary data
of any Colbent customer.
4
14. Amendment, Successors and Assigns.
This Agreement may be amended or modified by a written agreement executed by both parties. This
Agreement shall be binding on and shall inure to the benefit of the respective successors and
assigns of the parties hereto.
15. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions thereof interpreted under and in accordance
with the internal laws of The Commonwealth of Massachusetts without regard to the conflict of laws
provisions thereof.
16. Survival.
All provisions regarding indemnification, warranty, liability and limits thereon, and
confidentiality and/or protection of proprietary rights and trade secrets shall survive the
termination of this Agreement.
17. Severability.
If any provision or provisions of this Agreement shall be held invalid, unlawful, or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired.
18. Merger of Agreement.
This Agreement constitutes the entire agreement between the parities hereto and supersedes any
prior agreement with respect to the subject matter hereof whether oral or written.
19. Counterparts.
This Agreement may be executed by the parties hereto on any number of counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
Exhibit 1. Specific Services and Fees
| Fee | Service Provided | |||
| $ | 7500.00 | Project Management Fee |
||
| $ | 0.35 | 10 Day Notice Printing & Mailing (if applicable) |
||
| $ | 0.44 | 10 Day Notice Postage (if applicable) |
||
| $ | 1.00 | Per subscription form generated |
||
| $ | 1.00 | Per replacement forms/fulfillment |
||
5
| Fee | Service Provided | |||
| $ | 0.25 and up | Mailing of Subscription forms (depending on the number of enclosures) |
||
| $ | 6.00 | Per subscription form processed (registered and beneficial) |
||
| $ | 6.50 | Per defective subscription form received |
||
| $ | 3.00 | Per notice of guaranteed delivery received |
||
| $ | 1.50 | Per sale of right (if applicable) |
||
| $ | 2.25 | Per invoice mailed (if applicable) |
||
| $ | 0.75 | Per refund check issued and mailed (if applicable) |
||
| $ | 3.00 | Per solicitation check processed and mailed (if applicable) |
||
| $ | 6.00 | Per withdrawal of subscription certificate (if applicable) |
||
| $ | 1500.00 | Per Pro-ration (after first run of proration, if applicable) |
||
| $ | 1000.00 | Per offer extension |
||
| $ | 5000.00 | Minimum charge should the project be cancelled for any reason prior to the mailing of the subscription form |
||
| $ | 500.00/month | DTCC connectivity fee; typically one month |
||
| • | Excludes out-of-pocket expenses as described in Section C, “Items Not Covered” | ||
| A. | Services Covered |
| • | Designate an operational team to carry out Subscription Agent duties, including document review and execution of legal agreement, review of subscription forms and communication materials, project management and on-going project updates and reporting. | ||
| • | Calculating Rights to be distributed to each shareholder and printing shareholder information on the subscription form. | ||
| • | Issuing subscription forms, and causing forms to be mailed to registered shareholders. | ||
| • | Tracking and reporting the number of exercises made, as required. | ||
| • | Processing Rights received and exercised. | ||
| • | Deposit participant checks daily and forward all participant funds to Fund at the end of the offering period. | ||
| • | Providing receipt summation of checks received. | ||
| • | Run a pro-ration against the file if the rights offering is oversubscribed. | ||
| • | Interface with the Depository Trust Company (DTC). | ||
| • | Issuing/ Printing (if applicable,) and mailing stock certificates and/or checks. | ||
| • | Interfacing with the Information Agent. | ||
| • | Calculating, issuing and mailing of proration and/or over-subscription checks if applicable. | ||
| • | Calculating, issuing and mailing of solicitation checks if applicable. | ||
| • | Interface with Transfer Agent — produce a create tape/electronic file for all shares being issued. | ||
| • | Produce and Report to IRS 1099B’s (for the sale of rights) to registered shareholders at year end. |
6
| B. | Items Not Covered |
| • | Items not specified in the “Services Covered” section set forth in this Agreement, including any services associated with new duties, legislation or regulatory fiat which become effective after the date of this Agreement (these will be provided on an appraisal basis) | ||
| • | All out-of-pocket expenses such as telephone line charges, certificates, checks, postage, stationary, wire transfers and excess material disposal (these will be billed as incurred) | ||
| • | Reasonable legal review fees if referred to outside counsel. | ||
| • | Overtime charges assessed in the event of late delivery of material for mailings unless the target mail date is rescheduled. | ||
| • | Additional programming to accommodate project specific requirements. |
| C. | Assumptions |
| • | Proposal based upon document review and information known at this time about the transaction. | ||
| • | Significant changes made in the term or requirements of this transaction could require modifications to this proposal. | ||
| • | Proposal must be executed prior to the initial mailing. | ||
| • | Company responsible for printing of materials (Rights Card, Prospectus and ancillary documents). | ||
| • | Material to be mailed to shareholders must be received no less than five (5) business days prior to the start of the mailing project. | ||
| • | Accrued interest in Deposit account will be used to offset bank fees. All remaining account interest will go back to the company. |
| D. | Payment for Services |
| • | The Project Management Fee will be rendered and payable upon the effective date of the transaction. An invoice for any out-of-pocket and per items fees realized will be rendered and payable on a monthly basis, except for postage expenses in excess of $5,000.00. Funds for such mailing expenses must be received one (1) business day prior to the scheduled mail date. |
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their names and
on their behalf by and through their duly authorized officers as of the day set forth in this
Agreement.
The India Fund, Inc.
Title
The Colbent Corporation
Title: Vice President of Operations
8
