EXHIBIT (k)(xii)
INFORMATION AGENT FEE AGREEMENT AMONG THE FUND AND XXXXXXXXX SHAREHOLDER
COMMUNICATION.
May 29, 2003
Boulder Total Return 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. ("GSC") by Boulder Total Return 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. 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) 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,
media relations, stock watch and analytical services.
(d) 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.
(e) 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 [STRIKEOUT: "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 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.
(h) 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.
(i) 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.
(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.
Sincerely,
XXXXXXXXX SHAREHOLDER COMMUNICATIONS INC.
By: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Title: Managing Director
Agreed to and accepted as of the date first set forth above:
BOULDER TOTAL RETURN FUND, INC.
By: /s/Xxxxxxx X. Xxxxxx
Title: President
APPENDIX I
FEES & SERVICES SCHEDULE
BASE SERVICES $10,000
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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 $4.00 per completed call (incoming and outgoing)
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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.
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FEE PAYMENT INSTRUCTIONS
The Company shall pay GSC as follows:
o Upon execution of this Agreement, the Company shall pay GSC $5,000, which
amount is in consideration of GSC's commitment to represent the Company and
is non-refundable.
o Upon completion of the Offer, the Company shall pay GSC the sum of (i)
$5,000, (ii) any variable fees for Premium Services (e.g. telephone calls)
which shall have accrued over the course of the Offer and (iii) all
reimbursable expenses.
GSC will send the Company an invoice for each of the foregoing payments.
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