Exhibit (k)(5)
June 16, 2005
The China Fund, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx
This document will serve as the Agreement (the "AGREEMENT") between The Xxxxxx
Group, Inc. ("THE XXXXXX GROUP") and The China Fund, Inc. (the "FUND"), pursuant
to which The Xxxxxx Group will provide the services set forth below in
connection with the Fund's rights offering, which is currently scheduled to
commence in late May or early June 2005.
1. DESCRIPTION OF SERVICES
(a) The services to be provided by The Xxxxxx Group under this Agreement
include, but are not limited to:
(i) The contacting of banks, brokers and intermediaries to determine
the number of beneficial owners serviced by each and the
quantities of offering documents necessary;
(ii) The distribution of the offering documents to banks, brokers, and
intermediaries and the forwarding of additional materials as
requested;
(iii) The printing of documents as requested;
(iv) The set up of a dedicated toll-free number to respond to
inquiries, provide assistance to shareholders, and monitor the
response to the offer;
(v) The enclosing and mailing of the offering documents to interested
shareholders;
(vi) Strategic advice relating to the offering and providing periodic
reports regarding the offering as well as intelligence reports
concerning the participation of brokers and arbitrageurs in the
offering, as requested;
(b) If requested by the Fund, The Xxxxxx Group will, for an additional fee
(set forth below), proactively contact registered shareholders and/or
non-objecting beneficial holders (NOBO's) to help promote a high level
of participation in the offer.
2. FEES
(a) The Xxxxxx Group agrees to perform the services described above for a
base fee of $6,500, plus outofpocket expenses. The base fee shall be
paid at such time as this Agreement is executed.
(b) The Fund will reimburse The Xxxxxx Group for reasonable and documented
out-of-pocket expenses, which may include postage, FedEx, messengers,
telephone and other
related items approved by the Fund. Any outof-pocket expenses incurred
will be invoiced to the Fund after the completion of the rights
offering.
(c) In addition to the base fee, a $4.25 per telephone call fee will be
charged for every inbound telephone call received from a shareholder
regarding the Fund's rights offering.
(d) The additional fee for contacting NOBO's and registered shareholders,
if requested, will include a fee of $3.50 per shareholder contacted,
and out-of pocket expenses related to telephone number lookups at
$.35, Data processing, householding, call center training and quality
control at $.12.
3. CONFIDENTIALITY
The Xxxxxx Group and the Fund agree that all books, records, information
and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of
this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law. The
Xxxxxx Group shall not disclose or use any nonpublic information (as
that term is defined in SEC Regulation S-P promulgated under Title V of
the Xxxxx-Xxxxx-Xxxxxx Act of 1999) relating to the customers of the
Fund and/or its affiliates ("CUSTOMER INFORMATION") except as may be
necessary to carry out the purposes of this Agreement. The Xxxxxx Group
shall use its best efforts to safeguard and maintain the confidentiality
of such Customer Information, and to limit access to and usage of such
Customer Information to those employees, officers, agents and
representatives of The Xxxxxx Group who have a need to know the
information or as necessary to provide the services under this
Agreement.
4. INDEMNIFICATION
(a) The Xxxxxx Group shall be entitled to rely upon any written
instructions or directions furnished to it by an appropriate officer
of the Fund (President, Vice President, Secretary, Assistant
Secretary, or Treasurer), in conformity with the provisions of this
Agreement. The Xxxxxx Group shall not be under any duty or obligation
to inquire into the validity or invalidity or authority or lack
thereof of any instruction or direction from an officer of the Fund
which conforms to the applicable requirements of this Agreement and
which The Xxxxxx Group reasonably believes to be genuine.
(b) The Fund will indemnify The Xxxxxx Group against, and hold it harmless
from, all liability and expense which may arise out of or in
connection with the services described in this Agreement or the
instructions or directions furnished to The Xxxxxx Group relating to
this Agreement by an appropriate officer of the Fund, except for any
liability or expense which shall arise out of the negligence, bad
faith or willful misconduct of The Xxxxxx Group.
(c) The Xxxxxx Group shall be responsible for and shall indemnify and hold
the Fund harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of
or attributable to The Xxxxxx Group's refusal or failure to comply
with the terms of this Agreement, or which arise out of The Xxxxxx
Group's negligence, bad faith or willful misconduct.
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5. TERMINATION
This Agreement shall remain in effect until the conclusion of the Fund
rights offering or, prior to that upon 30 days' written notice by either
party to the other.
6. GOVERNING LAW
This Agreement will be governed and construed in accordance with the
laws of the State of New York, without regard to principles of conflicts
of law.
7. AMENDMENTS
This Agreement, or any term of this Agreement, may be changed or waived
only by written amendment signed by a duly authorized representative of
each party to this Agreement.
8. ASSIGNMENT
This Agreement shall not be assigned without the prior written consent
of each party to the Agreement.
9. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
10. CAPTIONS
The captions and descriptive headings in this Agreement are for only the
convenience of the parties. They do not in any way define or limit any
of the terms of this Agreement.
11. SEVERABILITY
If any provision of this Agreement shall be held invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected.
12. SURVIVAL
The provisions of Sections 3, 4, and 6 shall survive any termination,
for any reason, of this Agreement.
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If you are in Agreement with the above, kindly sign a copy of this Agreement in
the space provided for that purpose below and return a copy to us. Additionally,
an invoice for the base fee is attached and The Xxxxxx Group requires that we
receive this fee prior to the mailing of the offering materials.
Sincerely,
THE XXXXXX GROUP, INC.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Managing Director
Xxxxxx to and accepted as of the date set forth below:
The China Fund, Inc.
Xxxx Xxxxxx
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Print Authorized Name
/s/ Xxxx Xxxxxx
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Authorized Signature
President
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Title
June 22, 2005
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Date
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