EXHIBIT (k)(iv)
INFORMATION AGENT FEE AGREEMENT
October 25, 2002
Boulder Growth & Income Fund, Inc.
0000 00xx Xxxxxx, xxxxx 000
Xxxxxxx, XX 00000
Re: Letter of Agreement
Gentlemen:
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. ("GS") by Boulder Growth & Income
Fund, Inc. (the "Company") to act as Information Agent in connection with its
upcoming Rights Offer (the "Offer"). The term of the Agreement shall be the term
of the Offer, including any extensions thereof.
(a) Services. GS shall perform the services described in the Fees &
Services Schedule attached hereto as Appendix I (collectively, the
"Services").
(b) Fees. In consideration of GS' performance of the Services, the Company
shall pay GS the amounts, and pursuant to the terms, set forth on the
Fees & Services Schedule attached hereto as Appendix I.
(c) Expenses. In connection with GS' performance of the Services, and in
addition to the fees and charges discussed in paragraph (b) hereof,
the Company agrees that it shall be solely responsible for the
following costs and expenses, and that the Company shall, at GS' sole
discretion, (i) reimburse GS for such costs and expenses actually
incurred by GS, (ii) pay such costs and expenses directly and/or (iii)
advance sufficient funds to GS 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 GS 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 GS 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 GS' 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,
media relations, stock watch and analytical services.
(d) Compliance with Applicable Laws. The Company and GS 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.
(e) Indemnification. The Company agrees to indemnify and hold harmless GS
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 GS, which result from claims, actions, suits,
subpoenas, demands or other proceedings brought against or involving
GS which directly relate to or arise out of GS' 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
GS' 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.
(f) 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.
(g) Exclusivity. The Company agrees and acknowledges that GS 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.
(h) Additional Services. In addition to the Services, the Company may from
time to time request that GS provide it with certain additional
consulting or other services. The Company agrees that GS' 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 GS'
then-current rates.
(i) Confidentiality. GS agrees to preserve the confidentiality of (i) all
material non-public information provided by the Company or its agents
for GS' use in fulfilling its obligations hereunder and (ii) any
information developed by GS 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 GS or any of its officers, directors, employees, agents
or affiliates; (x) was available to GS on a nonconfidential basis and
in accordance with law prior to its disclosure to GS by the Company;
(y) becomes available to GS 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 GS 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 GS 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 GS.
The confidentiality obligations set forth in this paragraph shall
survive the termination of this Agreement.
(j) 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.
Agreed to and accepted as of Sincerely,
the date first set forth above:
BOULDER GROWTH & INCOME FUND, INC. XXXXXXXXX SHAREHOLDER COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Title: President Title: Managing Director
APPENDIX I
FEES & SERVICES SCHEDULE
BASE SERVICES $20,000
o Advice and Consultation with respect to set up and
progress of Offer
o Assistance in preparation and posting of advertisements
o Dissemination of Offer documents to bank and broker
community and communication with reorganization
department managers
PREMIUM SERVICES TBD
o Telephone communications with target shareholders
o $5.00 per completed call (incoming and outgoing)
NOTE: The foregoing fees are exclusive of reimbursable expenses as described in
paragraph (c) of this Agreement. In addition, the Company will be charged a fee
of $1,000 if the Offer is extended for any reason.
