Exhibit (k)(3)
September 9, 2003
Xxxxxxxxx Convertible Growth and Income Fund, Inc.
00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, 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. ("GSC") by Xxxxxxxxx
Convertible Growth and Income Fund, Inc. (the "Company") to
act as Information Agent in connection with its 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 paragraph (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:
- expenses incidental to the Offer, including postage and
freight charges incurred in delivering Offer materials;
- 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;
- 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;
- 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) 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 xxxx the Company directly,
for forwarding the Company's Offer 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 ("Losses"), 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
own negligence or intentional misconduct). To the extent
the company suffers Losses as a direct result of GSC's own
negligence or willful misconduct, GSC agrees to indemnify
and hold harmless the Company and its stockholders,
officers, directors, employees, agents and affiliates. 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
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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
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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.
By:/s/ Xxxxx X. Xxxx
-------------
Xxxxx X. Xxxx
Title:
Director
Agreed to and accepted as of
the date first set forth
above:
Xxxxxxxxx Convertible Growth
and Income Fund, Inc.
By: /s/ Xxxx X. Xxxxxx
Title: Vice President and Treasurer
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APPENDIX I
FEES & SERVICES SCHEDULE
BASE SERVICES $7,500
- Advance review of Offer documents
- Assistance in preparation and posting of
advertisements and news releases
- Dissemination of Offer documents to bank
and broker community
- Communication with bank and broker
community and all institutional shareholders
during Offer period
PREMIUM SERVICES
- Direct telephone communication with TBD
retail holders (i.e., registered and NOBO
shareholders)
- $5.00 per completed call (incoming and
outgoing)
- Dedicated toll-free phone line
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.
